Appellant argues these "fair game" practices are protected
religious expression. They cite to a recent Ninth Circuit case
upholding the constitutional right of the Jehovah's Witness
Church and its members to "shun" heretics from that religion even
though the heretics suffer emotional injury as a result. (Paul
v. Watchtower Bible & Tract Soc. of New York, supra, 819 F.2d
875.) In this case a former Jehovah's Witness sued the church and
certain church leaders for injuries she claimed to have suffered
when the church ordered all other church members to "shun" her.
In the Jehovah Witness religion, "shunning" means church members
are prohibited from having any contact whatsoever with the former
member. They are not to greet them or conduct any business with
them or socialize with them in any manner. Thus, there was a
clear connection between the religious practice of "shunning" and
Ms. Paul's emotional injuries. Nonetheless, the trial court
dismissed her case. The Ninth Circuit affirmed in an opinion
which expressly held "shunning" is a constitutionally protected
religious practice. "[T]he defendants, . . . possess an
affirmative defense of privilege -- a defense that permits them
to engage in the practice of shunning pursuant to their religious
beliefs without incurring tort liability." (Id. at p. 879.)
We first note another appellate court has taken the opposite
view on the constitutionality of "shunning." (Bear v. Reformed
Mennonite Church (1975) 462 Pa. 330 [341 A.2d 105].) In this case
the Pennsylvania Supreme Court confronted a situation similar to
Paul v. Watchtower Bible & Tract Soc. of New York. The plaintiff
was a former member of the Mennonite Church. He was
excommunicated for criticizing the church. Church leaders
ordered that all members must "shun" the plaintiff. As a result,
both his business and family collapsed. The appellate court
reversed the trial court's dismissal of the action, holding: "In
our opinion, the complaint, . . . raises issues that the
'shunning' practice of appellee church and the conduct of the
212 Cal.App.3d at 890:
individuals may be an excessive interference within areas of
'paramount state concern,' i.e., the maintenance of marriage and
family relationship, alienation of affection, and the tortious
interference with a business relationship, which the courts of
this Commonwealth may have authority to regulate, even in light
of the 'Establishment' and 'Free Exercise' clauses of the First
Amendment." (Bear v. Reformed Mennonite Church, supra, 341 A.2d
at p. 107, italics in original.)
We observe the California Supreme Court has cited with
apparent approval the viewpoint on "shunning" expressed in Bear
v. Mennonite Church, supra, rather than the one adopted in Paul
v. Watchtower Bible & Tract Soc. of New York, supra. (See Molko
v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1114.) But even were
Paul v. Watchtower Bible & Tract Soc. of New York the law of this
jurisdiction it would not support a constitutional shield for
Scientology's retribution program. In the instant case
Scientology went far beyond the social "shunning" of its heretic,
Wollersheim. Substantial evidence supports the conclusion
Scientology leaders made the deliberate decision to ruin
Wollersheim economically and possibly psychologically. Unlike
the plaintiff in Paul v. Watchtower Bible & Tract Soc. of New
York, Wollersheim did not suffer his economic harm as an
unintended byproduct of his former religionists' practice of
refusing to socialize with him any more. Instead he was
bankrupted by a campaign his former religionists carefully
designed with the specific intent it bankrupt him. Nor was this
campaign limited to means which are arguably legal such as
refusing to continue working at Wollersheim's business or to
purchase his services or products. Instead the campaign featured
a concerted practice of refusing to honor legal obligations
Scientologists owed Wollersheim for services and products they
already had purchased.