The Supreme Court today denied review in Bixler v. Superior Court, where an unpublished (!) opinion of the Second District, Division Five, Court of Appeal overturned a superior court order compelling arbitration of a lawsuit against the Church of Scientology. The lawsuit alleges that former church members, after reporting they had been raped by a church member, were subjected to extreme retaliation encouraged by the church.

The former members had agreed in writing to pursue claims against the church “solely and exclusively through Scientology’s Internal Ethics, Justice, and binding religious arbitration procedures.” One former member signed an agreement with slightly different language.

The Court of Appeal held that the church’s First Amendment “right to resolve disputes with its members without court intervention” yielded to the former members’ First Amendment “right to leave the faith,” because the dispute was one which “arose after petitioners left the faith, and which can be resolved on neutral principles of tort law.” One justice concurred only in part, but without writing a separate opinion.

Division Five had previously summarily denied the plaintiffs’ writ petition by a 2-1 vote, but the Supreme Court granted review and sent the case back with directions to decide the merits. (See here.)

The Supreme Court also today denied a request to publish the Court of Appeal’s opinion. While the Court of Appeal’s decision not to publish its opinion is surprising, given the legal issues involved, the Supreme Court’s refusal to order publication is not. To our knowledge, the Supreme Court has never ordered an opinion published after the authoring Court of Appeal has recommended against it, as Division Five did here.