As I wrote about in the blog post, I agreed to what? The role of arbitration and mediation has become the only choice when faced with a dispute about a service agreement.
In the New York Times series about the privatization of law that began on Sunday regarding Stacking the Deck of Justice, we can thank our Lawyers and one of the our Supreme Court Justice, for the overwhelming clause added to everything from parking tokens (check your ticket at the lot) to credit card agreements, loans and almost every aspect of business.
The reality is that we have turned a right into an option.
And then we have the next installment, the law of God. Apparently here in America where we have separation of Church and state we have that as an option as well. I would certainly understand this if you worked where Jesus does crafts (Hobby Lobby) or has a snack (Chick-fil-a) because they are clearly Christian based business and if you choose to work there or do business with them you will understand that obligation and you have the right to waive said obligation at apparently the peril of the Lord but you still have that right.
I think we are still a Democracy? Has God told someone otherwise?
But what I find more appalling is that these are often the same people who have raging Islamaphobia and are obsessed with Sharia Law, yet they are also the ones invading women's bodies by demanding laws to control their uteruses or how people elect to have sex and with whom. Is that not invading someone's privacy? But then the Bible comes out and the thumping begins. Where have I seen holy writings used to oppress, torture and kill people? Oh yes I recall now..
In Religious Arbitration, Scripture Is the Rule of Law
By MICHAEL CORKERY and JESSICA SILVER-GREENBERG
The New York Times
NOV. 2, 2015
A few months before he took a toxic mix of drugs and died on a stranger’s couch, Nicklaus Ellison wrote a letter to his little sister.
He asked for Jolly Ranchers, Starburst and Silly Bandz bracelets, some of the treats permitted at the substance abuse program he attended in Florida. Then, almost as an aside, Mr. Ellison wrote about how the Christian-run program that was supposed to cure his drug and alcohol problem had instead “de-gayed” him.
“God makes all things new,” Mr. Ellison wrote in bright green ink. “The weirdest thing is how do I come out as straight after all this time?”
To his family and friends, Mr. Ellison’s professed identity change was just one of many clues that something had gone wrong at the program, Teen Challenge, where he had been sent by a judge as an alternative to jail.
But when his family sued Teen Challenge in 2012 hoping to uncover what had happened, they quickly hit a wall.
When he was admitted to the program, at age 20, Mr. Ellison signed a contract that prevented him and his family from taking the Christian group to court.
Instead, his claim had to be resolved through a mediation or arbitration process that would be bound not by state or federal law, but by the Bible
“The Holy Scripture shall be the supreme authority,” the rules of the proceedings state.
For generations, religious tribunals have been used in the United States to settle family disputes and spiritual debates.
But through arbitration, religion is being used to sort out secular problems like claims of financial fraud and wrongful death.
Customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Carolina Cabin Rentals, which rents high-end vacation properties in the Blue Ridge Mountains of North Carolina, tells its customers that disputes may be resolved according to biblical principles.
The same goes for contestants in a fishing tournament in Hawaii.
Religious arbitration clauses, including the one used by Teen Challenge, have often proved impervious to legal challenges.
Scientology forbids its followers from associating with former members who have been declared “suppressive persons,” according to people who have left the church.
But this year, a federal judge in Florida upheld a religious arbitration clause requiring Luis Garcia, a declared suppressive, to take his claim that the church had defrauded him of tens of thousands of dollars before a panel of Scientologists, instead of going to court.
Pamela Prescott battled for years to prove that she had been unjustly fired from a private school in Louisiana. The crux of her case — which wound through arbitration, a federal appeals court and state court — was references in her employment contract to verses from the Bible.
In legal circles, those cases, along with the Ellison suit, are considered seminal examples of how judges have consistently upheld religious arbitrations over secular objections. They also reflect a battle in the United States over religious freedom, a series of skirmishes that include a Kentucky clerk’s refusal to issue marriage licenses to same-sex couples and a Muslim woman’s being passed over for a job at Abercrombie & Fitch because she wore a head scarf.
An Excerpt From Higuera Hardwoods’s Policy
“Arbitration shall be by a single arbitrator experienced in the matters at issue and selected by principal and agent in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries.”
More than anything, the cases show the power of arbitration clauses. An investigation by The New York Times found that companies have used the clauses to create an alternate system of justice.
Americans are being forced out of court and into arbitration for everything from botched home renovations to medical malpractice.
By adding a religious component, companies are taking the privatization of justice a step further. Proponents of religious arbitration said the process allowed people of faith to work out problems using shared values, achieving not just a settlement but often reconciliation.
Yet some lawyers and plaintiffs said that for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.
“Religious arbitration, at its best, ensures that people can resolve their disputes in accordance with deeply held religious beliefs,” said Michael A. Helfand, an associate professor at Pepperdine University School of Law and an arbitrator in a rabbinical court in New York. “But both religious communities and courts need to make sure that the protections the law has put in place to make it a fair and unbiased process are actually implemented.”
Few courts have intervened, saying the terms of arbitration are detailed in binding contracts signed by both parties. Some judges are also reluctant to risk infringing the First Amendment rights of religious groups, according to a review of court decisions and interviews with lawyers.
Some plaintiffs counter that it is their First Amendment rights being infringed because they must unwillingly participate in what amounts to religious activity.
“I am being forced to go before a court run by a religion I no longer believe in,” said Mr. Garcia, the former Scientologist. “How could that happen?”
Religion has long been at the center of Pamela Spivey’s life. She taught Sunday school, went to Bible-study camps and watched preachers on television.
So when her friends at the Park West Church in Knoxville, Tenn., suggested that she send her son Nick to Teen Challenge, she didn’t ask many questions.
“When you think Christian, you automatically think good,” said Ms. Spivey, who goes by the name Cheri.
It certainly seemed better than the alternative. After breaking his probation sentence for drunken driving and crashing into four parked cars, Mr. Ellison faced a year in jail.
As an alternative, the prosecutor in the case agreed to Mr. Ellison’s enrolling in Teen Challenge, a program that teaches participants to overcome addiction by studying the Bible and becoming more “Christ-like.”
Teen Challenge was highlighted by President George W. Bush as a successful faith-based program that deserved federal funding. “Government can pass law and it can hand out money,” Mr. Bush said in a 2006 speech. “But it cannot love.”
Like his mother, Mr. Ellison was a committed Christian, but he was never comfortable in church, his family said. He loved to write songs and poems. He had long bangs and was rarely without his Pokémon hat. But when he drank, they said, he could become violent and out of control.
Mr. Ellison was also openly gay — something his friends said was not easy in Knoxville public high school, where teachers were allowed to question evolution.
“I was scared for him to be so open about it,” said his friend Emily Kinser. “But I was also so proud of him.”
Friends and family said Mr. Ellison drank and took drugs to escape the pressures of not fitting in. “Society is telling him he’s not right,” said Ms. Kinser. “He felt unwanted.”
The night before he left for Teen Challenge in January 2011, Mr. Ellison was upbeat as he ate pizza with friends and family at his favorite restaurant in Knoxville.
His yearlong program in Pensacola, Fla., consisted of doing manual labor for many hours a day.
Local landscaping companies, carwashes and a fish market employed the men, former participants and their families said. Teen Challenge said money from the “work assignments” helped cover some expenses and the men were not entitled to compensation, according to a participant consent form.
“This wasn’t treatment, this was free labor,” said Angie Helms, whose son Tyler attended Teen Challenge with Mr. Ellison.
Teen Challenge explained that working was a way for the men in the program to overcome their addiction. Work is “one of the central purposes for human existence,” according to the consent forms.
Zack Sharp worked in the front office at Teen Challenge when Mr. Ellison attended. He also handed out over-the-counter medication and herbal remedies to the other men in the program.
Mr. Sharp, who was 24 and had abused every substance “I could get my hands on,” said he broke down and ingested some of the herbal pain medicine one day. He said he had a seizure, fell and dislocated his shoulder.
Mr. Sharp said he connected with Mr. Ellison partly because they were both gay. Coming from a conservative family in West Virginia, Mr. Sharp said he was accustomed to people trying to “heal” him — through prayer, even exorcisms.
At Teen Challenge, Mr. Sharp said, he knew how to play along with attempts to make him straight. But Mr. Ellison seemed more sensitive to the pressures, he said.
In a written report in March 2011, a counselor at Teen Challenge noted that Mr. Ellison had acknowledged having “homosexual relationships” and that he would bring this up in future sessions with Mr. Ellison to “see where he stands.”
About two weeks later, the counselor wrote that Mr. Ellison was making progress: “He admits that it’s wrong and had agreed to ask the Lord to help him with this issue on a daily basis.”
Officials at Teen Challenge, reached by phone and email, declined to comment.
There were other, subtler pressures. Mr. Ellison told his family that someone had taunted him by leaving pantyhose on his bed. He got in trouble for things like not turning off the air-conditioning before going to church and for entering another student’s bedroom, his disciplinary records show. For one infraction, he had to copy a passage from the Bible 200 times.
“It’s ironic,” Mr. Ellison wrote to his family. “The model Christians here are the ones I have the most trouble with. I want Matthew 7 tattooed onto my forehead.” He was referring to the biblical passage, “Judge not, lest ye be judged.”
Mr. Ellison was months into the program when he was sent home for disciplinary reasons, according to court papers.
Mr. Sharp, who credits Teen Challenge with helping him kick his addiction, said the program was unfair to those who broke the rules. He recalled at one point watching Mr. Ellison pack his bag and walk out the front gate of the facility. No one was permitted to talk to him as he left.
Ms. Spivey bought him a bus ticket home. Back in Knoxville, Mr. Ellison turned himself in to the authorities, because leaving Teen Challenge was a violation of his court order.
A prosecutor permitted Mr. Ellison to return to the Pensacola program, but he soon got into trouble again. Teen Challenge agreed to move him to another facility in Jacksonville.
About a month later, Ms. Spivey got a call while she was out walking her dog.
A manager at Teen Challenge said Mr. Ellison was intoxicated and was being taken to the hospital.
Ms. Spivey said she asked to speak with her son, but was told he did not want to talk to her.
When Ms. Spivey called the hospital, she was told that Mr. Ellison had never been “seen or admitted” there, according to the lawsuit she filed against Teen Challenge.
Mr. Ellison did not have a cellphone and he did not know anyone in Jacksonville, his family said.
“Please pray for my son,” Ms. Spivey posted on Facebook that evening. “He is in Jacksonville, Florida, and he is missing.”
Somehow, Mr. Ellison ended up at a CVS in downtown Jacksonville, where he met a woman who drove him to her apartment. The two stayed up that night drinking, according to a sheriff’s report.
“When she touched the victim he was cold to the touch and she put a mirror under his nose to see if he was breathing, which he was not and she call for fire rescue.”
At about 4 p.m., the woman told investigators, she checked on Mr. Ellison, who was sleeping on her couch. He had stopped snoring and his skin was cold. An autopsy revealed cough medicine and methadone in his system.
Ms. Spivey was outside pacing when a Knoxville police cruiser pulled up to her home before dawn on Aug. 21, 2011. She knew right away that her son was dead.
With her children Cameron and Katie, Ms. Spivey made the eight-hour drive to Jacksonville.
“I just wanted to know the truth,” she said.
The Peacemaker Method
When word got out that some of the early Christians had strayed, the Apostle Paul was concerned. Among their grave offenses: incest, prostitution and suing one another in court.
Christians should not take their problems before “unbelievers,” Paul wrote in his letter to the Corinthians. Disputes should be resolved inside the church.
Centuries later, Paul’s writings inspired a group of lawyers in Los Angeles to develop the practice of Christian conciliation.
The group’s work ultimately gave rise to Peacemaker Ministries, a nonprofit that devised a legal process that draws on the Bible.
The peacemaker method is used by private schools, Christian lawyers and others. Clauses requiring Americans to use Christian arbitration instead of civil court now appear in thousands of agreements like the one Mr. Ellison signed with Teen Challenge.
“Our secular court system is darn good,” said Bryce Thomas, a Christian conciliator in Hickory, N.C. “But it doesn’t get into deep moral issues like sin and reconciliation.”
A tall and outgoing lawyer, Mr. Thomas said he was called to leave his private practice and take up Christian conciliation full time.
He works out of an office on the bottom floor of his house, where there is a crucifix on the wall near a bust of Abraham Lincoln. To clear his head, he likes to stroll around a “peace path,” a garden of rhododendrons and towering trees behind his house.
“The Lord spoke to me when I was 59 and said, ‘I want you to give up your law practice and do peacemaking,’” said Mr. Thomas. “I said, ‘Lord, how about when I am 65?’ And he said, ‘No, Bryce, I need you now.’”
That was in 2006, he said, not long after a federal appeals court upheld one of his rulings, establishing an important precedent for how Christian arbitration can trump secular objections.
The dispute involved Northlake Christian School in Covington, La., and Pamela Prescott, a teacher and principal for about 12 years who said she was fired with little explanation.
She blamed her termination on a new school administrator, who she said had undermined her at every turn.He also made her feel uncomfortable, she said. At one staff meeting, the administrator surprised Ms. Prescott by washing her feet, an apparent reference to Jesus’ washing his disciples’ feet.
“It was creepy,” Ms. Prescott recalled. “I may be a Christian. But I am also a normal person.”
The oldest of five girls, Ms. Prescott was raised in New Orleans. Her father is a lawyer, but Ms. Prescott came to believe that suing another Christian was wrong.
Still, her firing had damaged her reputation, she said. The school gave her a few days to leave campus and never fully explained the reason for her termination to students and parents. No other Christian schools would hire her.
“It was like I had stolen something,” she said.
Ms. Prescott said she had tried to engage the school to resolve the dispute informally, but it didn’t work. Feeling she had no other choice, Ms. Prescott filed a federal lawsuit, claiming sexual harassment and discrimination by the school.
When word of her lawsuit got out, parents from the school and former colleagues avoided her at church and at the local Walmart, she said. Her pastor suggested she stop teaching Sunday school.
The school moved to compel Christian mediation and then arbitration, which was eventually held in a rented room at city hall in Mandeville, La. Mr. Thomas oversaw the proceedings, which resembled a civil trial with some exceptions. The arbitration began most days with a prayer. And when a teacher cried on the witness stand, Mr. Thomas allowed the woman and Ms. Prescott to hug.
The school argued that a survey of parents revealed unhappiness with Ms. Prescott’s leadership.
But only a small number of families had filled out the survey, and Ms. Prescott never saw the results.
Mr. Thomas dismissed Ms. Prescott’s claims of harassment and gender discrimination. But he found that the school board had violated its own contract when it failed to provide Ms. Prescott with any feedback before firing her. The contract required the school to follow Matthew 18:15, which implores Christians to confront each other before raising their problems with anyone else.
“If your brother sins against you,” the verse states, “go and tell him his fault between you and him alone.”
Mr. Thomas awarded Ms. Prescott about $157,000 for lost income and damage to her reputation.
“This woman had no idea her job was in jeopardy,” Mr. Thomas said in an interview. “They treated her badly.”
In his ruling, he urged the two sides to reconcile in a way “that glorifies God.”
But Northlake was not ready to move on.
The school had required Ms. Prescott to agree to Christian arbitration as a condition of her hiring. But when Northlake lost, it appealed the arbitration award in federal court, arguing that Mr. Thomas’s ruling was inconsistent with Louisiana law.
The case dragged on for four more years.
An appeals court in New Orleans ruled that it had no ground to overturn the Christian arbitrator. Northlake appealed the case all the way to the Supreme Court, which declined to hear it.
The current headmaster of Northlake said he could not comment on the case because it involved a previous administration. He added that the school still used Christian arbitration.
In the end, Ms. Prescott said she felt vindicated, despite having spent all but $8,000 of her settlement on legal costs.
“My faith is still strong,” she said. “But I am more careful in dealing with Christians than I used to be. They are just people with no more ability to be good than anyone else.”
The Price of Enlightenment
By the time he left Scientology, Luis Garcia had signed off on two dozen arbitration clauses in agreements with the church, requiring him to settle any dispute before a panel of fellow Scientologists.
In just about every aspect of church life, including training and making donations, members must settle any issue internally rather than going to court.
Yet, there has never been an actual arbitration in the six-decade history of Scientology, according to court records and a lawyer for the church.
An entrepreneur and a native of Madrid, Mr. Garcia said Scientology gave him the confidence to open a successful print shop and yogurt store in Orange County, Calif.
Mr. Garcia and his wife, Maria, dedicated years to Scientology, taking dozens of classes to try to reach enlightenment. He estimates that his family spent $2.3 million on courses, fees and donations.
In 2008, Mr. Garcia reached the highest level in Scientology, where he said all of one’s past lives are supposed to be easily recalled.
“But that didn’t happen,” he said. “That’s when I began to question everything.”
Mr. Garcia said he sent an email criticizing the church management to hundreds of Scientologists in November 2010.
The church declared the Garcias “suppressives” and excommunicated them, according to a legal brief submitted by his lawyers.
Mr. Garcia said he wanted back the roughly $68,000 he had paid the church for training courses he never took and other expenses, according to his lawsuit.
He also demanded that the church return $340,000 he said his family had given for the construction of a “Super Power” building in Clearwater, Fla.
Neither a spokeswoman from Scientology nor a church lawyer commented on the allegations in Mr. Garcia’s lawsuit.
Mr. Garcia said he repeatedly felt pressured to give money to keep officials from blocking his path toward enlightenment or writing him up for an ethics violation.
One night in Clearwater, a church official asked Mr. Garcia for $65,000 to pay for a large cross that would sit atop the Super Power headquarters, according to the lawsuit. “She said it would be the Garcias’ cross,” Mr. Garcia recalled in an interview.
Another former Scientologist, Bert Schippers of Seattle, said he was told the cross would be dedicated in his honor after he agreed to make a donation.
Scientology moved to force Mr. Garcia’s case into arbitration. The process seemed like a farce, he said. An arbitration run by a panel of Scientologists, his lawyers argued, could not possibly be impartial. As a declared suppressive, Mr. Garcia was considered a pariah. Church members who interacted with him risked being harassed, according to court papers filed by his lawyers.
“The hostility of any Scientologists on that panel is not speculation,” his lawyers argued. “It is church doctrine.”
A church official testified that the panel would be instructed to act fairly. In a statement, a lawyer for the church said that even though Scientology had never conducted an arbitration, the church had a set of procedures it used to resolve disputes with members.
In his decision, Judge James D. Whittemore of Federal District Court in Tampa said the Garcias were bound by the terms of the contract they had signed with the church. While acknowledging that Mr. Garcia may have a “compelling” argument about the potential bias of the process, Judge Whittemore said the First Amendment prevented him from even considering the issue.
“It necessarily would require an analysis and interpretation of Scientology doctrine,” wrote Judge Whittemore, who was appointed by President Bill Clinton. “That would constitute a prohibited intrusion into religious doctrine, discipline, faith and ecclesiastical rule, custom or law by the court.”
Mr. Garcia said he was still deciding whether to go through with arbitration.
Judge Whittemore’s ruling has also been a blow to the network of former Scientologists who have spoken out against the church.
“I do not understand why the courts are going along with it,” Mr. Schippers said.
Mr. Garcia’s lawyer, Theodore Babbitt, said the ruling might have scuttled many future lawsuits against the church. “Arbitration,” Mr. Babbitt said, “is inoculating the Church of Scientology from liability.”
The Elusive Truth
In Jacksonville, Ms. Spivey’s family tried piecing together her son’s final hours, picking up clues wherever they could.
At Teen Challenge, they pressed the staff for the name of the employee who supposedly took Mr. Ellison to the hospital. The treatment facility declined to identify him, the family said.
The local CVS where Mr. Ellison was seen hours before his death allowed the family to review video from its security cameras, which showed Mr. Ellison walking out of the store with a bottle of soda around 1 a.m.
The woman who picked him up near the CVS said he wanted to call home, but her cellphone was out of minutes.
Most of the family’s questions remained unanswered.
They still did not know whether the pressure Mr. Ellison felt at Teen Challenge about being gay exacerbated his drug abuse. Or how he ended up on his own in a strange city with no money or cellphone.
Ms. Spivey said she was convinced that only a lawsuit could force Teen Challenge to explain what had happened. But the contract that Mr. Ellison signed when he enrolled in the program stated that any dispute had to go to Christian conciliation.
From Mr. Ellison’s Contract With Teen Challenge
“The undersigned parties accept the Bible as the inspired Word of God. They believe that God desires that they be reconciled in their relationships in accordance with the principles stated in First Corinthians 6:1-8, Matthew 5:23-24 and Matthew 18:15-20.”
His family said they thought it was hypocritical that Teen Challenge was willing to collect food stamp subsidies to feed participants in the program, but insisted on the separation of church and state when it came to their legal case.
The conciliation would start as a mediation.
If mediation fell apart, the case would move to formal arbitration, a process that could include prayer.
Ms. Spivey said even though her faith had deepened since her son’s death, she did not want to take part in an arbitration involving religion. “I didn’t want to do worksheets on the Bible and then kiss and make up,” she said. “I wanted to find out what happened to Nick.”
In an appeal filed in Florida state court, Ms. Spivey’s lawyer, Bryan S. Gowdy, focused on the First Amendment’s protection of religious freedom — including the right not to exercise it.
Mr. Gowdy quoted James Madison, who wrote that the “religion then of every man must be left to the conviction and conscience of every man.”
But the judges in the First District Court of Appeals were satisfied that there was no constitutional conflict.
The appeals court found that the rules of Christian conciliation were not that different from those governing secular arbitration and included only a “scattering of religious elements,” which served to “solemnize the process and to promote and advance conciliation as a spiritual goal.”
If she still had a problem, the court ruled, Ms. Spivey could let someone else represent Mr. Ellison’s estate.
Ms. Spivey decided to go ahead with the mediation, though she said she worried how Christian panelists would view her son because of his homosexuality and drug addiction.
Peacemaker Ministries, which would run the process, said the mediation would incorporate prayer and scripture, according to a motion Ms. Spivey’s attorney filed in Florida circuit court.
Lawyers for both sides were also told that if they attended, they could not advocate on their clients’ behalf. Ms. Spivey had to pay a $5,000 retainer and a $750 fee to Peacemaker Ministries, her lawyer said in court papers
Dale Pyne, chief executive of Peacemaker Ministries, said he understood Ms. Spivey’s reluctance about conciliation since it was her son who had signed the arbitration agreement, not her. But he said the process helped “those in conflict to reconcile their issues and their relationships.” He added that “most of that is highly unlikely in a court process.”
Last year, Ms. Spivey decided to settle with Teen Challenge. She said she felt she was neglecting her other two children by obsessing over the case, which had gone on for more than two years. She declined to disclose the settlement amount.
Ms. Spivey said that without a court trial, she was never able to learn what happened to her son, not just on the night he died, but during his stay at Teen Challenge.
His family still does not know why he wrote the letter saying he was no longer gay, or whether he meant it.
“I don’t actually believe it,” his sister Katie said.
Mr. Ellison did not mail the letter. His family found it in his duffel bag at the apartment where he died. It was mixed in with clothes, family pictures and his Bible.