Moving On Up a Little Higher

I know there has been a lot of rumor, gossip, and speculation (spiced and spun by OSA operative propaganda) with respect to the meaning of the LA Federal Court order dismissing the Headley lawsuits.

Here is a pretty factual report on the matter:

http://www.tampabay.com/news/scientology/judge-dismisses-two-lawsuits-aimed-at-scientology/1113544

Here is a more insightful commentary on the matter:

http://www.examiner.com/x-8922-Skepticism-Examiner~y2010m8d7-Scientology-wins-legal-victory-loses-public-image-war

I’ve had time to analyze the ruling and am weighing in now. While my opinion in some ways is humble, I cannot deny my twenty-two years experience in litigating the precise issues at hand, so please excuse the righteous assertions of indignation that may might find expression herein.

First, when I read the Headleys’ complaints nearly two years ago, I predicted the result would be much like what Judge Fischer ultimately dished up. It did not mean I was in agreement with it. It meant I knew what the Headleys’ signed over the years. I helped draft or approved every one of the self-serving documents SO staff are required to sign and they were very carefully designed to strip staff of their fundamental civil and human rights. I also knew the precedents we in the church had vigorously fought to obtain over the past two and one half decades. I also knew how outgunned the Headleys were in terms of representation. When it came to Summary Judgment time, and I saw the wall of lies the church put forth to defeat the Headleys’ I provided my own declaration to expose that, knowing it was a long shot, but nonetheless the right thing to do.

Having studied Judge Fischer’s ruling on summary judgment, I have another prediction. That is the Ninth Circuit Court of Appeals will strike her ruling down in such a fashion as to create high court precedent that will make David Miscavige rue the day he spent five to ten million dollars in perpetrating what amounts to a fraud upon the court.

At the risk of offending people, I need to talk about politics for a moment. Whether you like this or not, the following is a FACT. Every major judicial decision – if there is an exception or two I cannot think of them off hand – of import that the church of Scientology has obtained over the past thirty years was handed down by a right wing conservative. I know it might sound counter-intuitive at first. But it is the case. Even while in the church, and an imagined beneficiary of such rulings, I came up with an explanation for this.

Conservative judges are trained doctrinally to be “strict constructionists.” That means – don’t forget your Science of Survival – they are trained to read and apply the law quite literally. Any “liberal” judge who uses reason to interpret the law and constitution in a manner that serves the late Justice Brennan’s motto “where there is a wrong there is a remedy” – usually in a way to protect the minority or the little guy (one reason the Constitution and the Bill of Rights were drafted in the first place) – is viciously condemned by conservatives as a “Judicial Activist”. Judicial Activists are then barraged with well-financed far-right propaganda as being somehow socialist, communist or worse. It is about as fair as saying that Strict Constructionists are Fascists.

As with most isms and labels, neither extreme is very productive. Sane Strict Constructionism often protects honest, productive corporations and small businesses from the havoc that dishonest, yet convincing shysters can wreak. Sane Judicial Activism, on the other hand, often protects our democracy from empowering corporations to so abuse the public as to create a literal Fascism.

It just so happens that Judge Fischer (A George Bush Junior team appointment, a judicial appointment team who was so “strict constructionist” doctrine oriented as to be scandalous in a society with a braver press corps)  is not a deep-thinker nor one inclined to find ways to fashion a remedy where clear wrongs are apparent, particularly when a well-heeled corporation is on the defense side of the courtroom. Her ruling reflects that.

 It is as shallow as a West Texas pig’s wading hole in late August.

 She reasoned, in essence, that the Church of Scientology may visit whatever horrors it wishes behind its walls so long as it claims it is done pursuant to religious “scripture.” I happen to know that that utterly ignores an eighty year string of judicial precedent that requires such an analysis to include this inquiry, “is that religious belief sincerely held.” Fischer’s ruling is bereft of that discussion. For good reason, if one wants to punt a controversial, toughly-fought case out of one’s realm of responsibility.

Worse, Judge Fischer also ignored a twenty-three page declaration from me that detailed how in fact the acts complained of by the Headleys were not only not done pursuant to any religious “scripture”, but instead were done in violation of the letter and spirit of fundamental Scientology scripture.

One of the problems with radical Strict Constructionism (and radical Judicial Activism for that matter), is that extreme doctrinaires (or the not quite bright or courageous wanting to stay hidden in his or her own ideological camp) will ignore the facts to get at the politically correct result. Fischer couldn’t have done a more blatant job.

It just so happens that the Ninth Circuit Court of Appeals (which covers the Western United States) is probably the most liberal Circuit Court in America. Several times over the past three decades the Church has won some “great precedent” in LA Federal Court, only to have it reversed by the Ninth Circuit. Given that our judicial system has become generally more conservative and less responsible over the years, I reckon the chances are Seventy-thirty that Fischer gets reversed.

But, something interesting occurred to me in studying all this and re-immersing myself in the foggy world of courts and the First Amendment. That is, David Miscavige better pray to God that my prediction is accurate. Should the Ninth Circuit punt by affirming Fischer, or deliver an even better reasoned opinion upholding Fischer, Fischer’s ruling will be the most current constitutional law as applies to the Church of Scientology. Why should DM fear that?

If Fischer’s ruling becomes law, RTC will become virtually powerless to seek the courts’ assistance in blocking, or even harassing, independent delivery of the religion of Scientology. To quote Judge Fischer:

“Entanglement issues arise whenever the Court must ‘evaluate religious doctrine or the ‘reasonableness’ of the religious practices followed by the church.’”…

“In other words, “it is not only the conclusions that may be reached by the court which may impinge on the rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.”

“Defendants here represent that the challenged conduct was doctrinally motivated. Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and doctrinally-motivated practices of the Sea Org.”

In other words, my words this time, if RTC wants to bring a case that in any way opens up an inquiry (even if raised by – as occurred in Headley v RTC – the defendant) into your practice of Scientology when your practice is Scientology doctrine-motivated, they will swiftly be shown the door by the court.

Think it through for yourself.

DM has hoisted himself upon the horns of the ole Texas Longhorn dilemma.

Marc and Claire Headley should be thanked for their outstanding work and persistence because they chased the rodeo clown right into the ‘damned if he does and damned if he doesn’t’ position he finds himself in.