No.

22-60

IN THE

Supreme Court of the United States

————
CHURCH OF SCIENTOLOGY INTERNATIONAL, RELIGIOUS
TECHNOLOGY CENTER & CHURCH OF SCIENTOLOGY
CELEBRITY CENTRE INTERNATIONAL,
Petitioners,
v.
CHRISSIE CARNELL BIXLER, CEDRIC BIXLER-ZAVALA,
JANE DOE #1 & JANE DOE #2,
Respondents.
————
On Petition for a Writ of Certiorari to the
Court of Appeal of California,
Second Appellate District, Division Five
————
BRIEF OF AMICUS CURIAE
PROFESSORS MICHAEL J. BROYDE AND
RONALD J. COLOMBO
IN SUPPORT OF PETITIONER
————

BARRY A. FISHER
Counsel of Record
FLEISHMAN & FISHER
12121 Wilshire Blvd.
Suite 504
Los Angeles, CA 90025
(310) 557-1077
bfshr557@gmail.com

August 16, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ ii
INTRODUCTION AND INTEREST OF
AMICI CURIAE ............................................... 1
ARGUMENT ........................................................ 3
I. THE COURT OF APPEAL’S DECISION
IS SUBSTANTIVELY PROBLEMATIC .. 3
II. THE COURT OF APPEAL’S DECISION
IS PROCEDURALLY PROBLEMATIC ... 5
CONCLUSION .................................................... 7

(i)
 ii
TABLE OF AUTHORITIES
CASES Page(s)
AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011) ................................... 1
Bixler v. Superior Ct. for the State of
California, Cnty, of Los Angeles,
No. B310559, 2022 WL 167792
(Cal. Ct. App. Jan. 19, 2022) .................... 1, 6
D.H. Overmyer Co. v. Frick Co.,
405 U.S. 174 (1972) ................................... 4
Garrett v. Patterson-UTI Drilling Co.,
299 S.W.3d 911 (Tex. Ct. App. 2009) ....... 4
Jessee v. Jessee,
866 S.E.2d 46 (Va. Ct. App. 2021) ............ 4
Merrill v. Milligan,
142 S. Ct. 879 (2022) ................................. 2
In re Marriage of Hibbard,
212 Cal. App. 4th 1007,
151 Cal. Rptr. 3d 553 (2013)..................... 1
In re Marriage of Weiss,
42 Cal.App.4th 106 (1996) ........................ 4
Spivey v. Teen Challenge of Fla., Inc.,
No. 1D12-4377, 2013 WL 5584237
(Fla. Ct. App., Oct. 11, 2013) .................... 6
Tomasko v. Dubuc,
145 N.H. 169 (N.H. 2000) ......................... 4
Viola v. California Dep’t of Managed
Health Care,
133 Cal. App. 4th 299
(Cal. Ct. App. 2005) .................................. 4
 iii
TABLE OF AUTHORITIES—Continued
Page(s)
Volt Info. Sciences., Inc. v. Bd. Of Trustees
of Leland Stanford Junior Univ.,
489 U.S. 468 (1989) ................................... 1

CONSTITUTION
U.S. Const. amend. I .................................... 1, 4

RULES
Cal. R. Ct. 8.1105.......................................... 5

OTHER AUTHORITIES
Steven C. Bennett, Enforceability of
Religious Arbitration Agreements and
Awards, Disp. Resol. J., Nov. 2009–Jan.
2010 ........................................................... 6
Michael J. Broyde, Faith-Based Arbitration
Evaluated: The Policy Arguments For
and Against Religious Arbitration in
America, 33 J. L. & Religion 340 (2019) .. 2
Michael J. Broyde, Forming Religious
Communities and Respecting Dissenters’
Rights, in Religious Human Rights in
Global Perspective: Religious Perspec-
tives (John Witte, Jr. and Johan D. van
der Vyer, eds) Eerdmans; Revised edition
(January 1, 2000) ...................................... 3-4
 iv
TABLE OF AUTHORITIES—Continued
Page(s)
Michael J. Broyde, Religious Alternative
Dispute Resolution in Israel and Other
Nations With State-Sponsored Religious
Courts: Crafting A More Efficient and
Better Relationship Between Rabbinical
Courts and Arbitration Law in Israel, 36
Touro L. Rev. 901(2021) ........................... 2
Michael J. Broyde, Sharia Tribunals,
Rabbinical Courts, and Christian Panels:
Religious Arbitration in America and the
West, Oxford University Press (2017)...... 2
Ronald J. Colombo, The First Amendment
and the Business Corporation (Oxford
University Press 2015) ............................. 2
Ronald J. Colombo, The Past, Present, and
Future of Christian ADR, 22 Cardozo J.
of Conflict Res. 45 (2020) .......................... 2
Leslie Green, Rights of Exit, 4 Legal Theory
165 (1998) .................................................. 3
Michael A. Helfand, ‘The Peculiar Genius of
Private-Law Systems’: Making Room for
Religious Commerce, 97 Wash. U. L. Rev.
1787 (2020) ................................................ 4
Michael A. Helfand, Religious Arbitration
and the New Multiculturalism: Negotiat-
ing Conflicting Legal Orders, 86 N.Y.U.
L. Rev. 1231 (2011) ................................... 6
 v
TABLE OF AUTHORITIES—Continued
Page(s)
Élise Rouméas, Enabling Exit: Religious
Association and Membership Contract,
23 Ethic Theory Moral Prac. 947 (2020),
https://doi.org/10.1007/s10677-020-10119-
7 ................................................................. 3
Brittany Scott, Waiving Goodbye to First
Amendment Protections: First Amend-
ment Waiver by Contract, 46 Hastings
Const. L. Q. 451 (2019) ............................. 4
William Simpson, Exit Rights, Pluralism,
and Equal Citizenship: Why Religious
Exemptions Are Still Worth It, 2 U. Pa. J.
L. & Pub. Affs. 257 (2017) ........................ 3
 INTRODUCTION AND
INTEREST OF AMICI CURIAE1
“It is an accepted maxim that pacta sunt servanda,
contracts are to be kept.”2 Consistent with this, it is
the longstanding policy of U.S. law, expressed via
the Federal Arbitration Act, “that private arbitration
agreements are enforced according to their terms.”3
Yet, in a novel application of the First Amendment,
the California Court of Appeal held that freedom of
religion absolved certain parties from the binding
responsibilities they assumed under validly executed
and otherwise enforceable arbitration agreements.4
The amici curiae question the correctness of the
Court of Appeal’s decision. Moreover, amici curiae
criticize the Court of Appeal’s decision to promulgate
its holding as an unpublished one. Justice Kagan’s
remarks, albeit in a different context, are arguably
more apropos here: “That decision does a disservice to
our own appellate processes, which serve both to

1
No party or counsel for any party has authored this letter
in whole or in part. No party and no counsel for a party has made
a monetary contribution intended to fund the preparation or
submission of this letter. Counsel of record for all parties received
timely notice of amicus curiae’s intent to file and consented to the
filing of this brief.
2
In re Marriage of Hibbard, 212 Cal. App. 4th 1007, 1018 n.5,
151 Cal. Rptr. 3d 553, 561 n.5 (2013), as modified on denial of
reh’g (Feb. 8, 2013).
3
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011)
(quoting Volt Information Sciences, Inc. v. Board of Trustees of
Leland Stanford Junior Univ., 489 U.S. 468, 478, (1989)).
4
Bixler v. Superior Ct. for the State of California, Cnty. Of
Los Angeles, No. B310559, 2022 WL 167792, at *10 (Cal. Ct. App.
Jan. 19, 2022), review denied (Apr. 20, 2022) (unpublished).
 2
constrain and to legitimate the Court’s authority.”5
For the issue in question “is a serious matter” which
merits “thorough consideration.”6
The interest of the amici curiae is that of scholars
who have written extensively in the field of religious
arbitration and religious freedom, including a book
and many articles.7 Were the court to grant plenary
review, amici curiae plan to submit a more thorough
amicus brief on the substantive issues presented. In
alphabetical order, amici curiae are:
 Michael J. Broyde – Professor of Law at Emory
University and Berman Projects Director in the
Emory University Center for the Study of Law
and Religion

5
Merrill v. Milligan, 142 S. Ct. 879, 889 (2022) (Kagan, J.,
dissenting) (objecting to the Supreme Court’s use of its “shadow
docket” to decide cases).
6
Id.
7
Between us we have written a few books and many articles
in the fields of arbitration law and religious freedom. See for
example, Michael J. Broyde, SHARIA TRIBUNALS, RABBINICAL
COURTS, AND CHRISTIAN PANELS: RELIGIOUS ARBITRATION IN
AMERICA AND THE WEST, Oxford University Press (2017);
Ronald J. Colombo, THE FIRST AMENDMENT AND THE BUSINESS
CORPORATION (Oxford University Press 2015); Michael J. Broyde,
Religious Alternative Dispute Resolution In Israel And Other
Nations With State-Sponsored Religious Courts: Crafting A More
Efficient And Better Relationship Between Rabbinical Courts And
Arbitration Law In Israel, Touro Law Review, 36:4 901-942
(2021); Ronald J. Colombo, The Past, Present, And Future of
Christian ADR, 22 Cardozo J. Of Conflict Res. 45 (2020); Michael
J. Broyde, Faith-Based Arbitration Evaluated: The Policy
Arguments For and Against Religious Arbitration in America, 33
The Journal of Law and Religion 340-389 (2019) and much more.

 
 3
 Ronald J. Colombo – Professor of Law and Dean
for Distance Education at the Maurice A. Deane
School of Law at Hofstra University

ARGUMENT
I. THE COURT OF APPEAL’S DECISION IS
SUBSTANTIVELY PROBLEMATIC
This case raises three important, overlapping issues
and resolves them in an unpublished opinion. Even
if these issues have been resolved correctly, these
matters are too important to be resolved in an
unpublished opinion for they would entail a substan-
tial change in both religious freedom jurisprudence
and contract law.
First, this opinion rules that there is a constitution-
ally recognized and protected exit right from civil
obligations undertaken in the course of membership in
a church or a faith community. Exit rights from any
faith – while somewhat intuitive in a constitutional
scheme like ours with religious freedom – are under-
developed and not well analyzed,8 and this is the first
opinion we are aware of to rule that contracts may be
breeched in order to facilitate exit from a faith. 9

8
William Simpson, Exit Rights, Pluralism, and Equal Citizen-
ship: Why Religious Exemptions Are Still Worth It, 2 U. PA. J. L.
& PUB. AFFS. 257 (2017).
9
See for example, Rouméas, É. Enabling Exit: Religious
Association and Membership Contract. Ethic Theory Moral Prac
23, 947–963 (2020). https://doi.org/10.1007/s10677-020-10119-7,
and Leslie Green, Rights of Exit, Legal Theory Volume 4, pages
165–185 (1998). One of us wrote about this issue many years
ago; see Michael J. Broyde, Forming Religious Communities
and Respecting Dissenters’ Rights, in Religious Human Rights
in Global Perspective: Religious Perspectives John Witte, Jr.
(Editor), Johan D. van der Vyver (Editor), Eerdmans; Revised
 
 4
Second, the opinion posits that this constitutional
exit right is unwaivable by contract. This is unlike
many other constitutional rights, both in the First
Amendment and countless other places.10 Consequently,
the opinion creates a constitutional exception to the
otherwise binding provisions of the Federal Arbitration
Act. Again, this is the first opinion we are aware of to
issue such a ruling.
Third, the opinion endorses the unprecedented per-
spective that religious arbitrations are state actions11.
The opinion’s reliance on In re Marriage of Weiss,
42 Cal.App.4th 106, 118 (1996) (a family law case
focusing on the best interest of the child in the context
of changing faiths by parents) represents a significant
expansion of a very narrow doctrine enunciated in
one context to a completely different one (religious
arbitrations).

edition (January 1, 2000) pages 203-233. The academic literature

assumes that contracts may not be breeched based on religious
freedom exit rights, contrary to the holding of this case.
10
D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-87 (1972);
Viola v. California Dep’t of Managed Health Care, 133 Cal. App.
4th 299, 313 (Cal. Ct. App. 2005); Garrett v. Patterson-UTI
Drilling Co., 299 S.W.3d 911, 916 (Tex. Ct. App. 2009); Jessee v.
Jessee, 866 S.E.2d 46, 54 (Va. Ct. App. 2021); Tomasko v. Dubuc,
145 N.H. 169, 176 (N.H. 2000); Brittany Scott, Waiving Goodbye
to First Amendment Protections: First Amendment Waiver by
Contract, 46 HASTINGS CONST. L. Q. 451 (2019).
11
Michael A. Helfand, ‘The Peculiar Genius of Private-Law
Systems’: Making Room for Religious Commerce, 97 WASH. U. L.
REV. 1787, 1819 (2020).

 
 5
II. THE COURT OF APPEAL’S DECISION IS
PROCEDURALLY PROBLEMATIC
Compounding the substantive concerns flagged above,
the Court of Appeal’s election to promulgate its deci-
sion as an unpublished one is procedurally problematic.
This runs contrary to the Rules of Court12 and,
moreover, sweeps under the rug a rare adverse ruling
against a religious community attempting to enforce
an arbitration agreement. Countless other faiths

12
As per Cal. R. Ct. 8.1105: “An opinion of a Court of Appeal
or a superior court appellate division—whether it affirms or
reverses a trial court order or judgment—should be certified for
publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly
different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an
existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or
construction of a provision of a constitution, statute, ordinance,
or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by
reviewing either the development of a common law rule or the
legislative or judicial history of a provision of a constitution,
statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a
principle of law not applied in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or
dissenting on a legal issue, and publication of the majority and
separate opinions would make a significant contribution to the
development of the law.” Cal. R. Ct. 8.1105.
At a minimum, it appears as though the first four conditions
for publication are met in this case.

 
 6
routinely see their rights to enforce arbitration
agreements upheld,13 yet here a culturally unpopular
religion (the Church of Scientology) does not. This
raises the deeply troubling prospect that some faiths
are subject to inferior treatment in the courts of
California than others, and to disguise that fact, the
Court of Appeals declines to publish this opinion.
If the Court of Appeals’ holding in Bixler is really to
be the law of the State of California, the California
Supreme Court should review the appellate decision,
provide suitable doctrinal guidance, and mandate this
holding throughout the State. Such would subject the
decision to the attention it deserves, and would subject
its important and controversial holdings to appropri-
ate national scrutiny. If, on the other hand, this is
simply discrimination against a certain faith, efforts
to evade the watchful eye of the U.S. Supreme Court
should not be countenanced; this Court should grant
certiorari and reverse.

13
Spivey v. Teen Challenge of Fla., Inc., 2013 WL 5584237, at
* 992-95 (Fla. Ct. App., Oct 11, 2013); Michael A. Helfand,
Religious Arbitration and the New Multiculturalism: Negotiating
Conflicting Legal Orders, 86 N.Y.U. L. REV. 1231, 1242-52 (2011)
(examining the deferential treatment United States’ courts afford
to religious arbitration agreements); Steven C. Bennett,
Enforceability of Religious Arbitration Agreements and Awards,
DISP. RESOL. J., Nov. 2009–Jan. 2010, at 26-30.

 
 7
CONCLUSION
For the reasons set forth above, amici curiae urge
the United States Supreme Court to grant review in
this case, allow for full and extensive briefing on the
issues raised herein, and render a published opinion
on the question of exit rights from religious arbitration
contracts that serves as binding precedent in all cases
in the state.
Respectfully submitted,

BARRY A. FISHER
Counsel of Record
FLEISHMAN & FISHER
12121 Wilshire Blvd.
Suite 504
Los Angeles, CA 90025
(310) 557-1077
bfshr557@gmail.com
August 16, 2022