Authors

Thomas Floyd

Playing the Unfair Game: Apostates, Abuse & Religious Arbitration

Abstract

This Note argues that the Bixler [v. Superior Court] approach should become the standard for evaluating the enforceability of religious arbitration against ex-members. Courts should not enforce agreements to religious arbitration against ex-members of a faith when the relevant conduct occurred after their religious affiliation ended. The First Amendment right of believers to leave their faith should prevail over the First Amendment right of churches to police their internal religious doctrine. Siding with the institutions on this issue allows them the power to exert control over apostates in perpetuity through an unintended synergy of the First Amendment and American contract law.

Part I of this Note discusses the state of the law, beginning with the Federal Arbitration Act (FAA) and concluding with a survey of religious arbitration. Part II serves as a brief introduction to the complex world and culture of Scientology to better understand the dynamics of Bixler and other Scientology-adjacent litigation. Part III examines the approaches of various courts to Scientology’s religious arbitration contracts, concluding with Bixler. Part IV applies the Bixler holding to the other Scientology cases and religious arbitration cases involving other faiths. Part V addresses counterarguments.

This abstract has been taken from the author's introduction.

Repository Citation

Thomas Floyd, Playing the Unfair Game: Apostates, Abuse & Religious Arbitration, 65 Wm. & Mary L. Rev. 223 (2023), https://scholarship.law.wm.edu/wmlr/vol65/iss1/6