If courts determine the Scientology agreement must be enforced, the women could still appeal the panel’s ultimate decision. But once an arbitration panel makes a binding decision, courts are limited in their ability to overturn it.
Courts also are legally obligated to favor arbitration agreements under the federal Arbitration Act of 1925. But state law determines the contours of the law, and California has been less protective of the pacts than many other states.
“California judges are just more skeptical of arbitration,” said Helfand, citing statistical studies.
Helfand, who has served as a Jewish arbitrator, said he was troubled that Scientology had not spelled out its arbitration procedures in advance of holding arbitrations. He also believes courts might be able to refuse to enforce the church’s arbitration agreements on the grounds they call for Scientologists “in good standing,” a description that secular courts are barred by the First Amendment from interpreting.
Ken Sande, a Montana resident who has a law degree and whose father was a trial judge, has overseen Christian arbitration. Its goal, he said, is partly to achieve reconciliation and to leave both parties satisfied. Someone who simply wants the highest amount of monetary damages, he said, is better off going to a public court. He said Christian arbitration also strives to ensure that both parties are satisfied with the arbitrators.
Critics of religious arbitration have argued that the forums often deprive litigants of the full protection of the law. The First Amendment’s protection of religious liberties prevents courts from giving religious arbitration the same scrutiny as its secular counterpart, argued Terrina LaVallee in 2020 in the Georgetown Journal of Legal Ethics.
She noted that in some Orthodox Jewish communities, a person can face being ostracized for refusing to arbitrate a dispute in a religious proceeding.
She cited a court decision upholding an arbitration agreement that threatened those who refused to sign with a seruv, even though the court described it as a “a prohibitionary decree that subjects the recipient to shame, scorn, ridicule and public ostracism by other members of the Jewish religious community.”
Whether people signed arbitration agreements under duress must be evaluated on a case-by-case basis, said Helfand. “I think courts don’t do a good job on that front,” he said.
Helfand said that in some cases, plaintiffs may fare better under Jewish law than secular law. He cited cases of teachers for religious schools who sue after being fired. American courts bars such lawsuits under a ministerial exception in the law. Jewish law allows teachers in religious schools to collect awards.
Michael J. Broyde, a law professor at Emory University who also has served as a Jewish arbitrator, noted that “religious communities have the right to determine who are going to be their members.”
“The real question to ask about Scientology arbitration is do people knowingly sign or do people just sign in passing without giving the matter any thought?” he asked.
William Forman, a lawyer for Scientology, said its arbitration agreements ensure “people know what they are signing up for.”
“The Scientology agreements are not treated any differently than other agreements which are routinely enforced,” Forman said.©2021 Los Angeles Times. Visit at latimes.com. Distributed by Tribune Content Agency, LLC.