Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.

The defendant school district in Lee v. Weisman, aware of its constitutional liability, sought to quell it by ensuring that the invocation (to be given by a Rabbi) be "denominationally neutral". The invocation would consist of generalized religious platitudes as opposed to specific denominational creeds.

Souter brilliantly countered this tack, first by offering a clear line of cases holding unconstitutional government preference for religion over irreligion; then by presenting a contratextual analysis of the establishment clause through its historical incarnations, interpreting its meaning by exhaustively comparing the rejected versions to final version:, finally concluding:

Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general.

Souter establishes that the framers repeatedly and deliberately edited the clause to exclude incarnations of a modified or specific "religion," finally settling on "religion" in its most general sense, and argues that the only reasonable inference to be drawn is that their intent was to prohibit the federal government from favoring not only religion x, y, or z, but from favoring religion, period. Souter's textual reading cannot be easily dismissed because, as he makes clear, the drafters of the Constitution explicitly considered the linguistic implications of each option before settling on the broadest one.

Souter goes on:

While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable tothe competence of the federal judiciary, or more deliberately to be avoided where possible.

If the government is permitted to advance a supposedly non-sectarian, or civil, religion, the Court will inevitably be thrust into the position of deciding whether a particular religious expression is sufficiently watered down and non-ecumenical to pass constitutional muster, and the Constitution plainly prohibits this. Souter explains why:

Nor does it solve the problem to say that the State should promote a "diversity" of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious presidential proclamations, the practice of sponsoring religious messages tends, over time, "to narrow the recommendation to the standard of the predominant sect." Madison's "Detached Memoranda," 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's "Detached Memoranda"). We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.

This is a point rarely advanced, but quite important: if government endorses a homogenized version of religious belief, it will effectively "crown a winner" from amongst religious competitors, and further, I'd argue, incentivize said competitors to match the religious message.

Souter then ably confronts the traditional counterargument--i.e., U.S. presidents, dating to around the time of the constitution's drafting have issued generalized religious proclamations in inaugural addresses and Thanksgiving Day addresses, so therefore the framers could not have viewed the establishment clause as prohibiting state preferences for religion, generally:

The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners' claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. [...] During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. Upon retirement, in an essay condemning as an unconstitutional "establishment" the use of public money to support congressional and military chaplains, he concluded that "[r]eligious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers." [citations omitted]

As for the presidents who, like Washington and Adams, unapologetically introduced public thanksgiving proclamations and prayer, Souter explains that "some Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next." Which goes on to this day, as evidenced by Bush's and now Obama's Office of Faith Based Initiatives, amongst a litany of other examples of impermissible government-religion cross-pollination.

By the time Souter wrote his concurrence in Lee v. Weisman, his view on the establishment clause had already become descendent, as Protestants and Catholics had been migrating to Evangelical megachurches, which openly preached sought government endorsement, and politicians wasted no time in openly courting this new, identifiable religious demographic. Indeed, his concurrence was only joined by two other Justices (Stevens, and somewhat mysteriously, O'Connor, whose later opinions would repudiate Souter's view here), although Souter was also part of the 5-4 majority. But Souter's more expansive concurrence represented an incisive, sensible view of the establishment clause that likely won't be seen for some time, to our detriment.

Members of the 1 Mind Ministries (could there be a more obviously cultic name?) apparently believed that the dead child, named Javon, would be resurrected:

After he died, Antoinette laid Javon's body on a couch, and the others knelt and prayed while Ramkissoon danced around the body, Assistant State's Attorney Julie Drake said. The group carried his remains in a green suitcase when they later moved to Philadelphia.

The mother, facing a 20 year sentence, pled guilty in exchange for her cooperation in testifying against other cult members, and (here's where it gets interesting) on the condition that she be permitted to withdraw the plea if her dead son had a "Jesus-like resurrection" (as distinguished from a reincarnation into an animal or object).

The deal offered to Ramkissoon by prosecutors seems fair enough, or at least within the bounds of reason--one might quibble that, as a mother, she bears the same if not more culpability as the cult leaders the prosecutors are apparently gunning for; and someone else might quibble that, as a cult victim, she bears no responsibility whatsoever.

But what interests me more is the so-called "resurrection clause". Obviously Ramkissoon's son is no threat to rise from the dead and moot his mother's guilty plea, so why was this even offered? I think it's important to determine the degree to which this offering from prosecutors played into her decision to plead guilty; and whether she would not have pled guilty had she not been so offered. If so, can it be said that her plea was coerced? Generally speaking (laws differ state to state, and I've not looked at Maryland's statute), a guilty plea must be entered into voluntarily and knowingly, and the suspect must understand the element of the crime to which he/she has pled. It seems to me that Ramkissoon's plea deal, by its ridiculous nature, might demonstrates her lack of understanding.

Yet, the vast majority of articles and opinion pieces are keyed only to the fear and outrage that this decision somehow spells apocalyptic doom for homeschooling. Take T. Keung Hui of the Raleigh News & Observer, whose allegedly straight news report on the decision begins:

Home-school groups and conservatives across the country are infuriated by a Wake County judge's declaration that he will make a North Raleigh mother stop teaching her children at home and send them to public schools.

Home Education Week in North Carolina kicks off Sunday (March 22) amid a firestorm of controversy surrounding a Wake County divorce ruling that will send three home schooled children into public school against their mother's wishes.

Keung doesn't even alert readers to the fact that the children have a father, Thomas Mills, until the 14th paragraph of the article (L.A. Williams, from whom an expectation of bias seems more natural, also first mentions the father in the 14th paragraph), despite that the father and mother requested that the court to settle their dispute as to how the children shall be educated. Yet these articles, and many others, frame this story as one where a court is arbitrarily imposing its will to destroy homeschooling, as opposed to what it is--a disagreement between parties who have to equally share decision-making power as to how the children are raised. Why should the father's wish that the children not be homeschooled not be taken into account--or at least mentioned in one of the first few paragraphs?

If the facts led the court to conclude that homeschooling was in the best interests of the children, which it may have decided had the facts led it to such a conclusion, this story wouldn't have made a ripple in the media pool. But the story has gained national interest, the attention mostly coming from homeschooling activists who see this decision as a threat to their way of life. In its rush to condemn the decision, however, it appears that they either have failed to grasp it, or are deliberately and disingenuously ignoring key facts.

The first ignored fact, as mentioned, is that the court was called upon by both parties to resolve a stalemate--it did not swoop down like Janet Reno on an unsuspecting Elián González and pry the children from their mother's arms kicking and screaming to public school. The parents genuinely disputed how to best educate the children, and the court addressed the matter just as every other court in the country would have--by determining the best interests of the children, which is not necessarily the same thing as the best education for the children, although it would most often work out to be the same.

This takes me to the next ignored fact--the mother has chosen to immerse herself in a cult which, as cults almost always do, urges member to actively disconnect from their non-believer friends and families. And the children's mother has done just that. According to Thomas, "Venessa Mills became unrecognizable as the person I had married. She withdrew emotionally from me."

Her longtime friend--they were each other's maids of honor--Shanna Winker-Hanson, testified that "In the last four years, since her joining the Sound Doctrine church, Venessa has pushed her loved ones away. She has become more and more distant with me."

Venessa's mother, father and sister even testified against their own blood relative, expressing their concern as to "Venessa's involvement with Sound Doctrine and are particularly concerned about the affect [sic] on the children." This obviously played a large part in the judge's decision, yet is hardly touched upon by Venessa Mills' many defenders.

The church to which Venessa belongs is run by Tim and Carla Williams and is located in the state of Washington--quite a ways from North Carolina. Tim and Carla have engendered no shortage of vocal detractors amongst ex-members, many of whom testified on behalf of the father. Ex-members characterized Sound Doctrine as "cult-like and manipulative" in affidavits, and claimed that it teaches members to "break" their children to establish authority, and subjects them to harsh work regimens. Perhaps most troubling were affiants who testified that Tim Williams would often speak about pre-teen children in a sexual manner; Tina Wasik testified that:

Tim Williams told me that my oldest daughter (then age 12) was the kind of girl men would take advantage of, that my middle daughter (then age 7) was the kind of girl that would sleep with any guy, and that my youngest daughter (age 4) was the kind of girl that would use her looks to seduce men." Tina Wasick added "Timothy once told us that our daughter [..] was the type of girl who would probably end up trying to seduce a pastor. She was 7 years old at the time!!"

Perhaps because those reporting this story have pitched it in such an unfair manner, there's no shortage of internet outrage to go around--in fact, I've yet to find someone defending the decision. Here's a sampling of the fact-free delusions I've come across:

This ruling is the top of a very slippery slope. If a judge can order homeschooled children into public schools for no reason besides his own "feelings," all homeschoolers are threatened.

That's Patrice Lewis from WorldNetDaily implying that the judge acted unilaterally, ignoring that both parties requested the court's assistance.

Alan Keyes was also informed of the decision and, as ever, didn't disappoint, reaching deep into his wellspring of unhinged rhetoric to warn that this "imposition of socialist tyranny will produce the enslavement of conscience," and later analogized the decision and fate of Venessa Mills to the tyranny imposed by "American slaveholders in the nineteenth century," who tore children away from their mothers "to be sold into slavery in some distant state." I posted a comment on Keyes' blog but doubt it'll be approved--I simply asked whether anyone commenting there gave any consideration to the fact that the father also had rights. I'll update as to how that goes. [update: comment accepted, no response yet though]

And actual politicians--as opposed to pretend ones like Keyes--also got in on the action: "I agree, this was a terrible decision. Hopefully an appeal will reverse the decision," scolded Neal Hunt, Deputy Republican Leader of the North Carolina Senate.

Finally, two websites, both in rabid defense of Venessa Mills, have cropped up, one, HS Injustice, run by Robyn Williams, who describes herself as a friend of mother Venessa Mills, and another, Home School Liberty, appears to be the work of John Peterson, who appears to be a tireless organizer.

These sources all fail to even confront the question of the father's rights--it's as if the fact doesn't exist, and Thomas Mills has no right in the world to disagree with Venessa as to how the children are schooled.

So why didn't Thomas want the children homeschooled? Apparently he agreed in 2005 to temporarily allow Venessa to homeschool the children "during their early years," but wished for them to return to public school later on. Thomas, and the court, agree that the Venessa is competently homeschooling the children. But the quality of the homeschooling is not at issue--the best interests of the children are issue, and the fact that the line between home schooling and Sound Doctrine is often blurred. Paragraph 39 of the order:

The Court finds as fact that part of the daily activity of the minor children includes the immersion into Sound Doctrine, through frequent communication via phone and web cam with people in Washington State. Thomas Mills expressed concern for this. He stated that he was unaware of Sound Doctrine instruction from a member in Washington State when it occurred during a time devoted to school curriculum. He stated in part that "I am concerned about this because they are directly targeting my daughter." The Court finds this as fact.

In paragraph 42 the court points out, incredulously, that "even though Mr. Mills has a good job, no criminal record, no history of substance abuse or domestic violence, Ms. Mills has asked this Court to enter several orders, including:

• "Limiting Mr. Mills from having any overnight visits with his children;
• "Limiting Mr. Mills from seeing his children to a total of 9 hours a week;
• "Removing all decision making authority away from Mr. Mills related to education and religion;
• "To not allow Mr. Mills any regular visitation on Sundays;
• "To order that Mr. Mills not allow the children to have contact with any ex-Sound Doctrine members or anyone hostile to the organization."

I believe the court found this list of requests telling as to Venessa Mills' state of mind, not only because they're so severed from reality--Tom Mills would have to be a monster to be awarded limited custody sought by Venessa--but also because each request reveals the mother's desire to limit the children's exposure to any external influence, and especially the father's influence. It's as if she's asking for court ordered disconnection, which is a hallmark characteristic of cults--concerned family members often question and disrupt the flow a member's money to the cult/beneficiary. One Sound Doctrine ex-member testified in an affidavit that "we were often harrassed [sic] to give money" and another that Sound Doctrine "really drives a wedge between members and their families."

The court rightly spotted that wedge in time, and ensured that Thomas Mills would have a hand in deciding how his children will be educated. Venessa Mills decidedly wants to immerse the children in Sound Doctrine to the exclusion of any competing thoughts and externalities, which Thomas actively sought to expand. Forced to choose between two potential futures for the children, the court opted for the future that would guarantee exposure to a wider variety of thought, while it simultaneously avoided the danger of the children's education becoming indistinguishable from Sound Indoctrination.

UPDATE: I'm glad to see that I'm not the only one to perceive this case rationally. I earlier missed that Timothy Sandefur and Little Green Footballs (of all places) both get it right also..

1. In November, 2008, Godelman and Le Shay filed its 3d Amended Complaint, alleging wrongful termination [pdf] against Diskeeper. Among the relief requested is a prospective injunction which would prevent Diskeeper from requiring present and future employees to take Hubbard Management Technology courses.

2. On December 10, 2008, Diskeeper moves to strike [pdf] Godelman's prospective injunction request, arguing that it is barred as a matter of law, an argument I believe they fell far short in demonstrating.

3. On January 13, 2009, Godelman opposed Diskeeper's motion to strike, arguing that the prospective injunction request is permitted by law and that the injunction request was not "irrelevant, false or improper," which is the legal threshold one must establish in order for the court to strike material from a pleading.

3A. After I posted item #3, I received a letter from Diskeeper's counsel, vaguely threatening me with having violated a court ordered confidentiality stipulation and requesting that I retain 'all correspondence related to this matter.' I surmised in an ARS post that Diskeeper's sensitivity was likely due to the presence of Exhibits C & D from Godelman's opposition (item #3 above). Exhibit C contained selected pages from the LRH Organization Executive Course, and Exhibit D was excerpted transcripts of Craig Jensen's deposition.

This brings us up to date, and brings us to the next chapter of the evolving procedrual saga:

4. Diskeeper's Reply to Godelman's opposition [pdf], along with a, wait for it... an Objection and Request to Strike Evidence Submitted by Plaintiffs in Support of Opposition to Diskeeper Corporation's Motion to Strike.

The Reply first argues, in somewhat convoluted fashion, that (1) Godelman failed to address Diskeeper's argument that a business may adopt a religious practice into its business model; (2) a total lack of authority notwithstanding, the federal standard of review for California's Labor Law (FEHA) with respect to the free exercise of religion should be strict scrutiny, because FEHA's "direct purpose and effect is to regulate or limit religious practice"; and (3) a total lack of authority notwithstanding, California's Constitution mandates strict scrutiny with respect to religious free exercise questions.

If the above doesn't make sense to you, it's not you--it really doesn't make sense. Diskeeper's argument that the plaintiffs requested injunction "would violate both statutory and First Amendment and California constitutional protections of an employer's right to incorporate religious practices in the workplace" (a) utterly fails to account for plaintiffs' free exercise interest, the presence of which renders a motion to strike as entirely improper, given that competing free exercise interests cannot effectively be weighed without trial; and (b) even if plaintiff's' free exercise interest was not present, Diskeeper's argument for application of a strict scrutiny standard is dubious at best, since far a better argument can be made that FEHA is a neutral law of general applicability, and does not, as Diskeeper contends, target and/or regulate religious practice.

As noted above, Diskeeper also filed an Objection and Request to Strike Evidence, which seeks to strike Exhibits C & D from Godelman's motion, as well as certain statements made by Diskeeper's attorney, Barry Kaufman. Their basis for this argument is these items are unauthenticated and improperly admitted extrinsic evidence. Kaufman's affirmation is not being offered as evidence, of course [the statement is, verbatim: "discovery has by now unequivocably confirmed that new employees at Diskeeper are required to study, learn and apply the so-called 'Hubbard Management Technology' in performance of their work for Diskeeper (and that their failure or refusal to do so can result in discipline or discharge)."], so I don't really know what to make of Diskeeper's characterization of the statement as being extrinsic evidence.

Diskeeper also asserts that the Hubbard Management Technology excerpts (Exhibit C) are unauthenticated and, despite failing to make any argument as to why the Craig Jensen deposition transcripts (Exhibit D) should also be considered extrinsic evidence, moves to strike those as well. Diskeeper sums up its argument, presumably with a straight face, that Kaufman's statements and Exhibits are "not the proper subject or proper evidence for consideration on a motion to strike," but are rather factual disputes more properly brought during trial. This assertion is especially ironic given that I've said precisely the same thing about Diskeeper's motion to strike--they very well could prevail on the merits of their argument that a prospective blanket injunction preventing Diskeeper from requiring (note emphasis) LRH Management Technology is improper... but at trial, not in a motion to strike.

The bottom line is that Diskeeper's motion to strike Godelman's request for prospective injunctive relief opened the door for Godelman to go out on the same limb Diskeeper's been granted; and now Diskeeper wants to limit the limb for itself. 

Claire Headley ("Claire"), wife of Marc Headley ("Marc") , who recently filed a lawsuit alleging labor law violations (which I wrote about here), has followed up her husband's lawsuit with a similar lawsuit of her own. Claire's complaint (which I converted to html here--the pdf can be read here) makes allegations similar to those by her husband, namely that Scientology violated California's labor laws in failing to pay her minimum wage and overtime. Claire's complaint largely mirrors her husbands with regard to the labor law claims, which I've already addressed (and concluded that they represent a potentially devastating threat to Scientology's business model), so I'll confine my remarks to the differences between her suit and her husband's suit.

For one thing, Claire's suit adds a significant defendant not present in Marc's suit--Scientology's Religious Technology Center ("RTC"), which sits above the also-named Church of Scientology International ("CSI") on the Scientology org chart. Whereas Marc worked exclusively for Golden Era Productions, an unincorporated entity under the CSI umbrella, Claire worked a variety of jobs including as a secretary for David Miscavige, the effective head of every Scientology entity, and the Chairman of RTC. CSI is considered the "mother church" and most of the management structure falls under it, but RTC controls Scientology's trademarks and copyrights, and thus serves as the black hole into which the bulk of Scientologists' money disappears.

More significant than the additional defendant is Claire's claim that she was "ordered and coerced to have abortions by [Scientology] management." Paragraph 28 of the complaint states:

Plaintiff Headley worked for Defendants CSI and RTC for many years before her escape in 2005. During this time, Plaintiff became pregnant on two occasions. Plaintiff was ordered to terminate these pregnancies by forced abortions. Plaintiff is aware that this was a relatively common practice at Gold Base. Plaintiff has knowledge of approximately twenty other female employees ordered to have abortions.

Alongside the forced abortion allegation, Claire complains of other "unlawful and unfair business practices," namely: (i) "retaliation against Plaintiff’s family business and others for pursuing labor claims"; (ii) human trafficking; and (iii) unlawfully requiring lie detector testing through the use of Scientology's "e-meter." These claims are not causes of actions in and of themselves, but are rather individual arguments in support of a larger unfair competition claim under California's Business & Professions Code § 17200 et seq. Claire also employs the forced abortion allegation as a separate common law discrimination claim.

Claire's forced abortion allegation comes well corroborated.

In a 1986 affidavit, ex-Sea Org member Mary Tabayoyon stated: "The September 28, 1986 Flag Order No. 3905 forbade Sea Org members from having any more new children. The reason given by ED Int. was that the Sea Org simply did not have the time, money and resources to raise children properly."

In a 1998 declaration, Jesse Prince stated: "In late 1991, my wife Monika became pregnant and although we were elated, she was ordered to abort the child. The reason for the abortion order is that Sea Org members were not allowed to have children."

In a 2001 declaration, Tera Hattaway spoke of the coercive techniques used to encourage abortion: "She went on to tell me that the spirit doesn’t enter the baby’s body until the baby is born. She made the point that all I would be “killing” is a piece of meat essentially. We discussed this for a couple of days and she showed me definitions in the L. Ron Hubbard Technical Dictionary to persuade me to have an abortion."

In a 2001 declaration, Astra Woodcraft stated: "Approximately 1½ years before I left, a new rule came out stating that if you got pregnant, you had to either get an abortion, which was heavily pushed, or leave. The rule had previously been that if you got pregnant, you had to get an abortion or be sent to a small and failing lower organization where you had to fend for yourself and your baby."

Scientology generally responds by labeling its accusers liars and apostates, but the excerpts above are but a sample of the countless other ex-members who have stated the same--the corroboration is on a level too vast and broad to dismiss so lightly. These stories share a commonality of motive and purpose: Scientology coerces and forces abortions because pregnant staff members are simply bad for business, due to the added expenses involved in the medical needs for pregnant women, the time lost when the pregnant woman cannot work, and the expense involved in providing day care when the child is born. The one-time cost of an abortion solves the problem.

Claire also alleges human trafficking, also as part of a larger unfair competition claim. Unlike the forced abortions allegation, there is a statutory analogue for human trafficking, namely California Penal Code § 236.1, which states that "[a]ny person who deprives or violates the personal liberty of another with the intent to ... obtain forced labor or services, is guilty of human trafficking." Section 236.1 goes on to define "unlawful deprivation or violation of the personal liberty of another" as the "substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person[.]"[FN1]

While human trafficking has obviously been going on for centuries, United States law has only recently begun to address the topic, mostly in response to women's groups bringing attention to the women being brought into the United States to work as prostitutes. While the California legislature likely didn't have Scientology in mind when it passed the statute, it nevertheless appears broad enough that Claire could assert a claim under the CTVPA independently, although California does not explicitly provide civil remedy to trafficked persons. [CORRECTION: California Civil Code 52.5 provides a civil cause of action for human trafficking--see end of post for update] Professor Kathleen Kim, a professor at Loyala Law School created an instructive Powerpoint presentation, entitled "Civil Remedies for Victims of Human Trafficking" in which she extrapolates on the civil options available to victims of human trafficking, noting that the Federal human trafficking statute, upon which the California statute is modeled, provides a private cause of action.

Kim also suggests that civil human trafficking claims could be brought under the Thirteenth Amendment (involuntary servitude); the Alien Tort Claims Act; RICO; the Fair Labor Standards Act; Title VII of the Civil Rights Act; Contract, tort, or negligence claims; or under state labor codes, which is what Claire Headley has done here, alleging human trafficking as part of her unfair business practices claim.

If the court were to rely on the penal code definition (stated above), Claire would have to show that Scientology "substantially restricted" her liberty through "deceit" or "coercion" because Scientology intended to obtain her forced labor. This does not seem an especially difficult task, although there would be a question as to which burden of proof would be employed (the criminal "beyond a reasonable doubt" burden is more difficult to show than the civil "preponderance of evidence" standard).

Claire's complaint also departs from Marc's in one other interesting way in that it specifically requests "A permanent injunction prohibiting Defendants and their agents for ordering and/or coercing abortions with respect to their employees." A similar request for a permanent injunction affecting non-parties going forward is presently at the heart of the Godelman v. Diskeeper lawsuit, presently ongoing in the same court (and which I've written about extensively on this blog, for which I've received legal threats from Diskeeper's counsel). In that case, Diskeeper's Scientologist lawyer, Tim Bowles, objected to an injunction prayer for relief that, if granted, would prohibit Diskeeper from requiring any employee to study, adopt, or apply L Ron Hubbard's "Managment Tech" or "Study Technology" and thus moved to strike it from the complaint on the basis that it implicated Diskeeper's religious freedom (despite their somewhat hypocritical argument that Hubbard Management and Study Technology are not religious). . Diskeeper's motion to strike has not yet been ruled on but it would be interesting to see if Scientology responds to Claire's request for prospective relief in the same manner.

The forced abortion and human trafficking allegations serve to bolster an otherwise decent claim, although the unfair business practice claim may turn to some degree on the nature of Claire's work, which isn't made entirely clear in the complaint (Scientology will want to argue that Claire's work was religious in nature, so further scrutiny will likely be paid to precisely what Claire did for CSI and RTC). But unlike Marc's suit, which focuses primarily on minimum wage and overtime pay, if it were found that Scientology engaged in tortious behavior by forcing and coercing abortions or engaging in human trafficking, a religious exemption argument may not be available to them, regardless of what Claire did for each organization. Religious organizations are as liable as secular ones for their tortious acts.

In sum, Claire's claim would seem to have a decent chance of success at trial, assuming she can prove her allegations to a jury; but if history is an accurate indicator, Scientology will go to significant lengths to make sure it doesn't get that far. Miles to go before we sleep, but the vehicle is promising for a change.

* [FN1] For a concise summary of the California Trafficking Victims Protection Act, see Michael C. Payne, The Half-Fought Battle; A Call for Comprehensive State Anti-Human Trafficking Legislation and a Discussion of How States Should Construct Such Legislation, 16 Kan. J.L. & Pub. Pol'y 48 (2006).

UPDATE: California Civil Code 52.5 provides a civil cause of action for human trafficking. To summarize the statute, the civil cause of action defines human trafficking identically to California's Penal Code (section 236.1), and provides a range of remedies (actual (treble), compensatory, and punitive damages, as well as injunctive relief, attorney's fees and costs). The statute of limitations is five years tolled from the "freedom date," or until the victim turns 26 (8 years past majority), if trafficking occurred while underage. Perhaps quite significantly, the statute of limitations can even be tolled (won't begin until a later time) if the victim was under a "disability" at the time the trafficking took place--disability could mean "insanity, imprisonment, or other incapacity or incompetence " If the defendant induces the delay in filing (e.g., threats, duress), they're estopped (legally prevented) from asserting the statute of limitations as a defense. Moreover, if the statute of limitations is suspended due to a disability, the estoppel applies to all other related claims arising out of the trafficking.

The letter (which can be read HERE [PDF]), implies that the material I've previously posted was confidential and that my posts contravene a confidentiality order issued in this case last year. The letter also requests that I retain all correspondence relating to how I came to obtain the material I posted. The letter also contains the confidentiality order in question. My response is below.

Dear An,

Thank you for your letter, and I'm sorry you feel my posts are misleading--I respectfully disagree.

I have reviewed the documents on my site as well as the confidentiality order. Preliminarily, I will note that your letter declines to allege or identify any of the material I've posted as being subject to the protective order in this case. If this is an oversight on your part, please identify which documents you feel are subject to the protective order so that our discussion can have more meaning.

Perhaps, on the other hand, your failure to allege or identify any documents subject to the protective order is an acknowledgment that none of the material I've posted is subject to the protective order, which states in paragraph 3, that "Documents become designated material when visibly marked by the producing, disclosing, or otherwise designating party as "CONFIDENTIAL" to be subject to this Order." [emphasis added] Of the possibly relevant material hosted on my site, no document is visibly marked as "CONFIDENTIAL," or marked in any way which would lead a reasonable person to construe them as such. Moreover, none of the exhibits within the documents are visibly marked as "CONFIDENTIAL."

Your letter goes on to imply untoward behavior on my part in seeking to learn "how [I] obtained information and/or documents related to this case," despite that every pleading and filing in this case is publicly available from the Los Angeles County Superior Court web site (!). If the documents were intended to be designated as confidential, not only should they have been visibly labeled as such, but they probably should not be publicly available on the Los Angeles County Superior Court web site.

Finally, as I am not party to this litigation, perhaps you could better explain why you 'anticipate my compliance' with regard to this order. My blog is a journalistic pursuit that regularly deals with matters such as religious discrimination, to which Mr. Godelman's lawsuit is highly relevant. Moreover, this lawsuit has a great deal of public relevance and I will therefore view correspondence such as yours, including future correspondence pursuing the same, as attempts to intimidate and censor. Likewise, I will view any action directed at me in light of California's anti-SLAPP provisions (which specifically provide for the recovery of attorneys fees by prevailing parties). Kindly note also that I will post this and any future correspondence related to this matter, on my site.

Very truly yours,

Scott Pilutik

“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.

"where [religious or non-profit] organizations engage in ordinary commercial activities, such as operating a printing and publishing plant, the business activities will be treated under the Act the same as when they are performed by the ordinary business enterprise."

As Eugene Volokh pointed out, Riverside's original oridinance [PDF] was likely doomed to fail--while restrictions on the picketing of targeted residences are constitutionally permissible (see Frisby v. Schultz, 487 U.S. 474 (U.S. 1988), Klein v. San Diego County, 463 F.3d 1029 (9th Cir. 2006)), restrictions which are overbroad or vague such as Riverside's first draft will fail if challenged. Riverside's first ordinance prohibited picketing within 300 feet of a residence.

County Supervisor Jeff Stone is the sponsor behind these ordinances (on behalf of Scientology), and with the introduction of a similar ordinance, the question is: Does this new ordinance remedy the prior ordinance's constitutional deficiencies? And regardless of its constitutional deficiencies, will it pass anyway?

Taking the last question first, as a matter of pure politics, it seems unlikely that Jeff Stone would've reintroduced this amended ordinance without first attempting to mollify the previous no-votes. But as we don't really know, there's no sense dwelling on the realpolitick issue.

Regardless of whether Jeff Stone has the votes, is this new ordinance constitutionally bulletproof? Whereas the previous ordinance prohibited picketing or protesting within 300 feet of a targeted residence, the new ordinance shortens that distance to 50 feet, but measures this distance not from the targeted dwelling but from the property boundary. The new version also creates an exception that would permit picketing on the sidewalk opposite a residence. Here is the actual text of both:

OLD:
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within three hundred (300) feet of a residential dwelling in the unincorporated areas of the County of Riverside.

NEW:
Section 4. PROHIBITION. No person shall engage in picketing activity that is targeted at and within fifty (50) feet (measured from the lot line) of the property upon which the targeted dwelling is located in the unincorporated areas of the County of Riverside, except the sidewalk space on the opposite side of the street from the tarageted dwelling.

The new statute [PDF] appears, on its face, to rectify its overbreadth problem by permitting picketing nearer to its target (and adding the sidewalk exception), but only when you consider the statute's intended beneficiary do you realize that it still prevents anyone from picketing Scientology's "Gold" base. A look at Gold base in Google Maps illuminates some of the problems:

To begin, Gold isn't a residence as anyone typically thinks of one--rather, it is a fortified compound containing residential buildings. Therefore, the statute's shortening the length protesters are permitted to picket from 300 to 50 feet matters little where Scientology's Gold base is concerned if one is measuring from the property line.

The revised ordinance appears to have pulled off quite the trick, in fact--it appears on one hand to better comport with existing case law by more "narrowly tailoring" its restrictions, while making it even more difficult to picket Gold. By measuring from the property line instead of the dwelling, the zone of protection has effectively been widened, especially as a) Gold's property line is not marked out; b) the part of Gilman Springs Road upon which a protester would ordinarily picket appears to be a public easement running through property belonging to the Church of Scientology. Additionally, looking at the area in Google Maps, Gilman Springs Road doesn't appear to have a sidewalk, meaning that the ordinance's exception is effectively meaningless in this context (and even if a "sidewalk" could be imputed to be near the curb of the adjacent property, the "adjacent property" to either "sidewalk," belongs to Scientology along Gilman Springs Road.)

The revised ordinance's most clever feat could also be its biggest problem, then--while protesters can somewhat reliably measure from a residence, they cannot so easily measure from a property line, as they cannot be expected to be aware of all property lines, which aren't always obvious to the naked eye, at least in the same way a residence is. It may be, therefore, that any restriction that requires a protester to measure from a property line would be unconstitutionally vague.

Alexander Godelman and Marc Le Shay, two Diskeeper employees (Godelman was CIO and Le Shay hired as the Automation Planning Officer) have filed a complaint in the Los Angeles Superior Court alleging that Scientology training was a condition of employment and that their refusal to participate led to their dismissal. According to the complaint, "{t]he working conditions and work environment at DISKEEPER were inextricably intertwined with the Scientology religion such that a non-Scientologist cannot escape constant impositions of said religion."

When Godelman complained that these programs ran counter to his own religious belief (Judaism), former Diskeeper CEO and current Chairman Craig Jensen told Godelman that his attendance at the "training courses" was "not negotiable," adding that Godelman would become more intelligent and his personal life would "improve drastically." Jensen also warned Godelman to not "complain about the process" in emails, which Jensen feared would be "misconstrued" and/or "taken out of context." Le Shay was eventually fired after he refused to attend and participate in a course series entitled "Basic Study Manual" and after Godelman interceded on Le Shay's behalf, Godelman was also terminated.

The complaint alleges five causes of action--three based on Diskeeper's alleged violation of California's Fair Employment and Housing Act (FEHA): namely, discharge due to religious discrimination, discharge in violation of public policy, retaliation against persons opposing wrongful practices. A fourth cause of action claims that Diskeeper violates California Labor law, which prohibits employers from retaliating against persons refusing to participate in activity which would result in a violation of a federal or state statute or regulation. A fifth cause of action alleges that Diskeeper failed to maintain its statutory obligation to prevent discrimination.

In response to Godelman and Le Shay's 3rd amended complaint, Diskeeper filed a Motion to Strike portions of Plaintiffs' complaint, specifically, Plaintiffs' requested remedy for...

"...prospective injunctive relief in the form of a prohibitory and/or mandatory injunction requiring Defendants to cease, desist and forever refrain from forcing or requiring any employee, as a condition of employment, to study, adopt and/or apply the so-called "Hubbard Management Technology" and/or the related "Hubbard Study Technology" in the workplace, according to proof at trial[.]"

Diskeeper argues in its motion that these injunction requests should be struck from the Complaint because Diskeeper is permitted to introduce religious training in the workplace and therefore any injunction which broadly prohibits religious practice in the workplace is unconstitutional.

It would be helpful at this point to explain the purpose of a motion to strike, which is rarely filed. A party will sometimes move to strike language in a pleading which is scandalous and has no relevance to the complaint or relief requested. Filing a motion to strike is also a useful if one wanted to stall, buy time, or bleed the opposing side of legal fees, because it extends the time to serve an Answer to the Complaint. While Diskeeper's argument may actually have some merit and may ultimately succeed at trial, a motion to strike will likely be viewed by the Court as an improper procedural tool to confront this particular argument. Diskeeper will eventually be permitted to make their argument, but not at this stage of the litigation.

For California law on motions to strike, see the California Code of Civil Procedure §§ 435,436.

What's most notable about Diskeeper's motion, however, is Diskeeper's implicit admission that Hubbard Management and Study Technology are both religious in nature, else why would they advance the argument that Diskeeper has a protected interest in providing religious training to employees? In footnote 4 of the motion, Diskeeper claims that it in no way concedes that Hubbard Management and Study Technology are religious, but to anyone familiar with both Scientology and Hubbard's supposedly secular "technologies," the two brands are basically indistinguishable, and indeed, the establishment of supposedly secular fronts was intended by Hubbard to be a recruiting tool.

It will be interesting to see what happens next but a trial seems likely.

If someone with significant bandwidth could kindly mirror these two PDFs, that would be great, because the below link is merely a free mediafire account, whose bandwidth will cap at some unknown point. I will keep this blog updated with the most recent location of the files.

The Ninth Circuit finally, after 10 months, published its opinion in Sklar v. Commissioner, and I'm sad to say it disappoints. I wrote about the oral arguments in this case back in May, trying to read the tea leaves as to what the court might do.

Although the court arrives, ultimately, at the right decision (the IRS's unconstitutionally preferential treatment of Scientology should not be extended to other religions), this opinion is a huge disappointment because it appeared that at oral argument in February of this year, the court was inclined to remand the case back to Tax Court to permit the Sklar's to make a disparate treatment argument, an argument which would have necessitated allowing into evidence the IRS-Scientology "secret agreement," which, though published by the Wall Street Journal, neither the IRS nor Scientology will authenticate/validate/admit exists. Despite that this very issue was the primary focus of discussion at oral argument in February, the opinion makes no mention of it. Here's a snippet from the oral argument:

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."

Judge Wardlaw even said, at one point during oral argument, that what the Court would probably have to do is remand because there was no other way of actually knowing whether Sklar's disparate treatment argument would work except to allow him to at least make it, despite its near-certain futility. It was Judge Wardlaw who then wrote the opinion that barely mentioned this issue.

Keep in mind that Scientology was not a party to this case so it was never within the Tax Court's nor the Ninth Circuit's discretion to rule on the constitutionality of the IRS-Scientology agreement--that wasn't the central issue in this case, so it's no real surprise that this case came out identical to the first one. But the judges seemed poised to remand, which would've put the IRS-Scientology agreement at trial, in a sense, and good things may have come of that.

Also strange is that this opinion took 10 months to write. Yet the opinion obstinately declines to grapple with what the court expressly admitted at oral argument was a difficult question--it just ducks it. I'm not going to speculate too particularly, but there is no good reason for such a simple, by-the-numbers opinion to take so long (Federal Circuit Court opinions generally take 4 months from oral argument to be published). My guess is that while the Judges never disagreed as to whether the Sklars should ultimately prevail, there was disagreement over whether to remand, with the pragmatic camp suggesting that it would be a futile exercise (likely correct) and the rule of law side arguing the Ninth Circuit should not be deciding the merits of the Sklars' argument before they've made it (which is what I was rooting for).

This would've been a nice opportunity to see the IRS-Scientology agreement argued as to its constitutionality but that opportunity and moment are now lost, at least for now. Few, if any, plaintiffs have standing (as taxpayers) to challenge the agreement, and taxpayer standing became more difficult last year after Hein v. Freedom From Religion Foundation was decided by the Supreme Court.

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).

Of course, slavery and denying women and blacks the right to vote were also "deeply embedded in the history and tradition of this country" up until the time progress surpassed our shame. Which is why the court should never allow disputes over contentious traditional practices to turn on the fact that the practice is traditional. "We've always done it that way" is a bad answer to nearly any question. If tradition is to be elevated to a virtue, let us at least view tradition in America as, in John Stewart's recent words to Bill O'Reilly, a "progression of individual freedoms," a view which more accurately comports with the history of this country.

Of course, we are all not "religious people" .. "presuppos[ing] a Supreme Being" either. And despite that "we" never really were, the percentage of self-identifying as atheists or agnostics, along with the percentage of non-monotheistic religious adherents, has grown over 200 years, making this a more pluralistic and disparate country, whose available common ground has correspondingly shrunk.

Despite that it's been with us for so long, legislative prayer remains constitutionally problematic for reasons belonging to both the religious and those who, like myself, would prefer that religion and politics not be so blended.

Many religious people feel, with reasonable justification, that non-denominational legislative prayer, stripped of its religious trappings and watered down to its most general pieties so as not to offend any constituent, is not religion at all, but a political compromise... venturing away from penultimate truth instead of approaching one. Not all religions subscribe to the interfaith club, a club which obviously favors voting members over abstainers, despite that the members deign to speak for the lot of us.

For the non-religious, the opposition to legislative prayer largely stems from the fact that God does not appear on the ballot when one elects a judge, councilperson, congressperson, senator, or president--one elects a candidate who presumes to represent everyone, a constituency which includes the godless and members of non-monotheistic religions. A legislature that begins each day with prayer signals to religious minorities (including the non-religious) that they matter less. This view retains an unfortunate degree of political capital--in the recent race for the North Carolina senate seat, incumbent Republican Elizabeth Dole ran a desperate ad accusing Democratic challenger Kay Hagan of being an atheist ... and Hagan responded by suing Dole for defamation. It's difficult to matter less when you belong to a class which politicians outrace each other to demean.

Not all legislatures begin with prayer, and some legislatures have even compromised by convening sessions with a moment of silence, in an effort to minimize the pool of potentially offended. That wasn't good enough for a resident of Marion Country, Georgia, whose city council had recently amended its procedure to just such a compromise:

A 70-year-old resident spent Monday night in the Marion County Jail after praying aloud during a moment of silence at the City Council meeting.

[...]

At the onset of the meeting, Mayor Rob Thoman read a statement of disorderly conduct and stated anyone who talked out of turn would be in violation of the statement.

During the moment of silence, [Charles] Lynch began reading a prayer out loud; when asked to be quiet, Lynch began to pray louder, according to the report.

Lynch was then asked to leave the meeting. He refused and grabbed a chair, prompting Southport assistant Chief Mark Myers to forcibly pry Lynch's hands from the chair, according to the report.

For those who would claim that legislative prayer does not violate the Constitution, how do you reconcile the Supreme Court's diminishment of legislative prayer as a mere historical acknowledgement with Charles Lynch's martyrdom when the city council tried to sever religion from its civic identity? The entrenched centuries-old persistence of legislative prayer to this point served as a signal to Christians that their beliefs matter to this country above all. Whenever a city council or court seeks, in the spirit of equity, to address the interests of all its constituents, some Christians recoil at the loss of their favored nation status and cry persecution at not being permitted to impose their views on everyone in a civic setting. "Witnessing" is a central tenet of many strains of Christianity, but the government need and should not be its agent.

Non-sectarian, non-denominational legislative prayer was an early attempt to compromise and temper the plurality of religious views held during the First Congress, but our plurality has grown too broad for such prayer to be fairly representative of the electorate. Permitting random clergy from a variety of faiths to lead in prayer is an anemic solution, as such clergy are still required to adhere to supposed non-sectarian guidelines.

Robert J. Delahunty pointed out in his article, Varied Carols: Legislative Prayer in a Pluralist Polity [pdf], that there are three basic problems with non-sectarian prayer:

(1) non-sectarian prayer is illusory, because "every prayer, by its very reflects and conveys a particular system of beliefs about the nature of ultimate reality, and is thus 'sectarian'"; conversely, attempts to strip prayer of its natural sectarian characteristic results in, at best, a "sterile litany virtually devoid of true religious meaning";

(2) the demand that prayer adhere to non-sectarian guidelines discriminates, perversely, against religious adherents by requiring that they conform the religious message they speak and hear in civic settings to civic requirements;

(3) in attempting to escape the problem of establishing religion by mandating only non-sectarian prayer, the cure has itself become the problem, as non-sectarian prayer is evidence of "civil religion"--a hybrid of the least offensive aspects of most religions, weighted heavily toward Christianity, and a growing religious orthodoxy of its own.

I would agree with all of the above but go farther and argue that we have already established Civil Religion, in clear violation of the Constitution. It is an inadvertent religion formed and shaped by those who would circumvent the establishment clause, not by their intent but nevertheless by their actions. This inadvertent religion effectively contends that its God takes a specific, favorable interest in our country, a view that is not reflected in the text of any religion that comprises the basis for civil religion in the United States. Indeed, the conceit runs contrary to Christianity's New Testament, whose humanistic tenet that one "love they neighbor" would be qualified by civil religion as applying on a basis relative to manmade geographical constructs.

Though inadvertent, civil religion is as real as Charles Lynch was led to by this country's history and tradition to believe it to be. But far from saving it from violating the Constitution, as Marsh would have it, history and tradition only serve to compound.