Damned If You Do, Damned If You Don't: Religious Shunning and the free exercise clause

by defender of truth 9 Replies latest watchtower beliefs

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  defender of truth

  The following link is to a PDF file found on the Penn Law Legal Scholarship Repository website.

  " The Penn Law Legal Scholarship Repository is the institutional repository of the University of Pennsylvania Law School. Its purpose is to collect and preserve the scholarly output of Penn Law. "
  

  http://scholarship.law.upenn.edu/

  Please share any thoughts you have on the reasoning used in this document.

  
  Damned If You Do, Damned If You Don't: Religious Shunning and the free exercise clause

  If you don't trust my link, which would be fair enough, simply Google the following search term as I write it:

  'religious shunning tax exempt'

  It should be the very first page that comes up.
  
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  defender of truth

  Well, I found it to be a fascinating read...

  I've never read anything like it before.

  OK, assuming that people don't have time to read the whole thing, here are a few highlights:

  Jehovah's Witnesses shun members after a process called "disfellowshipping."

  "Members of the Jehovah's Witness community are prohibited-under threat of their own disfellowship-from having any contact with disfellowshipped persons and may not even greet them." Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875, 876 (9th Cir.), cert. denied, 108 S. Ct. 289 (1987); see also J. BERGMAN, JEHOVAH'S WITNESSES AND KINDRED GROUPS at xxiii "(1984) (discussing how dissenting Witnesses, who in 1938 voluntarily left the Society because of doctrinal differences, were "treated with indignation and animosity by their former brothers"). Family members are required to shun other family members who are disfellowshipped.

  By definition, shunning seeks to quell dissent and subject individuals to the will of the group. This Comment questions whether the Constitution should elevate the rights of religious groups above the rights of individual members of religious groups. It concludes that absolute constitutional protection for shunning is inappropriate.

  The second difficulty in applying the Sherbert rationale to shunning cases, is that free exercise issues will almost always apply to both parties. For example, imagine that a woman has been a member of a religious group for ten years. During that time, she has married, had children, and built a business that depends largely on trade with members of the group. The woman becomes embroiled in a doctrinal dispute with the group, and the group expels her. According to the group's beliefs, all persons expelled must be shunned. Therefore, even though the woman's husband has great love for his wife, the group elders order him, on pain of expulsion, to cease all physical and emotional contact with her. The children are also instructed to shun their mother, and individual members of the group stop doing business with her. The marriage ends in divorce and the woman sues the group and the elders for alienation of her spouse's affection. The group, however, responds with a free exercise defense: by shunning the plaintiff, it was merely practicing what it believed.

  If the court allows the woman's suit to proceed and requires the group to pay tort damages to the wife, it burdens the group's free exercise of religion. On the other hand, the woman may claim that she was exercising her own religious beliefs by disputing the group's religious principles."

  One possible objection to the conclusion that the group and the individual have equivalent free exercise concerns is that the religious group can show state action, but the individual cannot. The religious group could argue that its religious belief, which required shunning, would be burdened by state action

  "' The message sent by the court would be that once the woman joins a group that practices shunning, she is effectively foreclosed from altering her beliefs. The impact of this result is magnified by the fact that a religious group may change its doctrine at any time before, during, or after a member leaves, and may retroactively impose punishment. This was precisely the situation in Paul v. Watchtower Bible and Tract Soc'y of N.Y., Inc., 819 F.2d 875, 876 (9th Cir.), cert. denied, 108 S. Ct. 289 (1987), in which Paul voluntarily withdrew from the Jehovah's Witnesses in 1975, only to have the governing body of the church amend its rules in 1981 to provide for the shunning of persons who had left voluntarily. See id. at 877. Paul subsequently was shunned and brought a legal action against her former church for the harm she had suffered.

  As applied to the Paul case, this result is unsettling. Paul joined and left the church while one set of rules was in effect; under Hull, when the church later changed the rules to her detriment, she had no legal recourse.

  Likewise, a church's treatment of former members should be limited to the conditions in force when the former members belonged to the church. This approach would not inhibit the free development of religious doctrine because the church would remain free to alter its doctrine at any time without altering its rights with respect to existing members; church members would be free to resign in the event that their church changed its doctrine without warning. It would also avoid the result in Paul, which permitted the majority to exercise control over its members past and present.

  If the court is a state actor when it upholds the church member's tort claim, then it is a state actor when it upholds the religious group's free exercise defense.4

  Another likely response to the woman's complaint is that she assumed the risk of shunning when she joined the group. The case law, however, does not uniformly bear out this contract-type model in practice.4 In fact, churches are free to change their doctrine at will, and church members cannot complain to the courts.

  For some reason, this fact has never been recognized by courts or asserted by litigants in shunning disputes. If a court is willing to recognize the free exercise defense asserted by religious groups that practice shunning, then it should also recognize that a member who left the group may be protected by the free exercise clause. Although court recognition of the plaintiff's claim would place some burden upon the group's shunning behavior, recognition of the group's defense will burden the decision of a member to leave, at least from groups that sanction "shunning" of former members. The free exercise clause should not protect the group more than it protects the individual members of the group.

  The Purposes of Shunning

  The unity of any group that adheres to a given body of religious ideas is dependent to some extent upon its members' fear of being forced to live apart from the group." Generally, the more a religious group is considered to be in the minority, the greater its need for strong sanctions against deviations from the faith.55 There are a number of common sense explanations for this phenomenon. First, assuming that smaller religious sects are comprised mainly of converts from other, more "mainstream" sects, the threat of sanctions may persuade converts to remain faithful to their new sect after the first blush of inspirationwears off.

  This appears to have been the case with the Jehovah's Witnesses, who adopted the practice of "disfellowshipping" sometime during the middle part of this century-in apparent response to the group's rapid growth.

  Strong pressures toward uniformity exerted by groups tend to depend on the following characteristics: (1) little discrepancy of opinion within the group;

  (2) greater degree of relevance of the disputed opinion to the functioning of the group;

  (3) high group cohesiveness based upon close interpersonal relationships;

  (4) exhibition of certain personality characteristics by members of the group, including authoritarian personalities, low self-esteem, self-blaming, a high need for affiliation, low intelligence, anxiety, and low tolerance for ambiguity; and

  (5) cultural factors that seem to exist in societies that have birth and death rates that are both either high or low.).

  1 See id. at 329 (discussing how deviants from one group will seek more compatible alternative groups).

  The Mennonites and the Jehovah's Witnesses comprise relatively small, but cohesive, segments of their surrounding populations. The experiences of Robert Bear illustrate the strength of pressures to conform in the Mennonite church:

  "I should have known how submissive the church had [my wife] to do its bidding out of fear of losing 'unity' with the one 'pure' body, for her to turn so completely against a husband she had lived with for thirteen years." R. BEAR, supra note 5, at 38.

  " See M. PENTON, APOCALYPSE DELAYED: THE STORY OF JEHOVAH'S WITNESSES

  1. Harm to Family Relationships

  Shunning severs all contact between members of the group and the outcast.

  1 The effect of shunning often depends upon the shunned person's relationship with the group. To the member who is a relatively recent convert having minimal economic ties to the group, shunning may mean only the loss of a few close friends.

  2 Conversely, for the member who was born into the sect or has an extensive social or economic commitment to the group, shunning can cause much greater harm.

  The acts of which Paul complained included one occasion when a close childhood friend told Paul, "I can't speak to you. You are disfellowshipped." Id. at 887. On another occasion, Paul attended a Tupperware party at the home of a Witness only to be informed that the church elders had instructed the congregation not to speak to her.

  When Paul voluntarily left the Jehovah's Witnesses, there was no express sanction for withdrawing from the group; not until six years later did the Governing Body of Jehovah's Witnesses rule that disassociated members were to be shunned.

  The Paul court's holding that state common law torts always impose an unconstitutional burden upon religious exercise, was unwarranted.

  In Paul, the Ninth Circuit fell prey to a distortion precisely opposite from the one that confronts courts dealing with an individual's free exercise claim in the statutory context.

  20 The individual plaintiff who asserts her free exercise claim against a large bureaucracy capable of justifying almost any action in terms of sweeping governmental interests runs the risk of appearing to be a troublemaker.

  12 In the shunning context, however, these roles are reversed; the disgruntled former member with dubious-sounding claims of intangible emotional harm confronts a unified church bureaucracy wielding the twin-edged sword of scriptural mandate and constitutional protection.

  In reality, shunning cases almost always involve good-faith disputes over religious doctrine.

  It is the difference of opinion on religious issues that compels the former member to leave the church or the church to excommunicate her.

  22 Both parties to the dispute invariably act according to the dictates of their respective views of religion.

  If a court recognizes a cause of action for the former member, it burdens the free exercise of the group's faith.

  When families are involved however, or economic interests are at stake, a blanket refusal to recognize a cause of action for the former member goes too far the other way.

  The former member is effectively foreclosed from changing her beliefs or taking issue with church authorities, while, under Paul, the church is free to fashion a suitable "sanction" retroactively

  and Paul, (both the church and the individual changed their positions on issues of conscience, but only the church's free exercise rights were protected).

  See, e.g., Paul, 819 F.2d at 876 (plaintiff withdrew from church because she disputed the disfellowshipping of her parents and was prohibited from discussing this feeling with other members)

  CONCLUSION

  
  

  This Comment has adopted an approach to religious shunning that has never been used in a court of law.

  The approach advocated by this Comment, however, is very simple: when religious groups shun their members, more is at stake than the religious freedom of the group.

  Each member of the group has free exercise rights at least as compelling as the group that shuns them.

  The test of Sherbert v. Verner' 75 should be applied with this guiding principle in mind.

  When courts ignore the free exercise rights of individuals and look only at the religious claims of groups, they elevate the group's religion over the individual's religion.

  This is a dangerous path to follow. It gives religious groups virtually unfettered coercive power over their members and former members and blocks dissent and doctrinal development.
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  DT

  That is a fascinating article. I have seen some of those arguments debated on this forum, but it was great to see a thorough and scholarly discussion of these issues.

  
  

  I think that part of the problem is that it is much easier for a court to dismiss a case based on the idea of preserving the rights of a religious organization than to interfere in the interest of preserving the legal rights of the individual.

  
  

  It would take a clever lawyer to overcome that hurdle, but I could see it happen in certain shunning cases if the lawyer puts the proper emphasis on individual rights.

  
  

  I'm not religious, but I believe in the value of personal religious liberties. I resent that the courts have so consistently favored the rights of organizations over the rights of individuals. The result is that if a person tries to exercise his freedom of religion by joining a religion, then he must surrender some his rights to the religion itself, according to the way the courts have been deciding these kinds of cases.

  
  

  It makes little difference if the religion is moderate and tolerant. The religion can arbitrarily change its policies and the courts will be unlikely to intervene if this harms the members or interferes with their right to leave freely.

  
  

  I also think it's necessary to distinguish between a person's right to shun and the enforcement of shunning policies by church leaders. I don't think the courts should interfere with personal shunning, but there should be a legal remedy if someone uses his influence to compel others to shun. So an elder, for example, should be free to shun a former member, but if he sits on a judicial committee and punishes a current member for associating with a former member, then he should be held liable if his actions can be shown to interfere with the rights of others.

  
  
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  Londo111

  Thanks for sharing.
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  godisagui

  "The former member is effectively foreclosed from changing her beliefs or taking issue with church authorities.."

  Let me play the part of "a clever lawyer" to bridge the gap between this point and the idea that the right to religious liberty of the indivudual supersedes that of the religion:

  Organized shunning (or "extreme shunning") effectively squelches the FREE SPEECH of the individual, but not of the organization or its leaders. The First Amendment protection of religious freedom is an extension or consequence of it's protection of free speech, not the other way around. That the founding fathers were concerned primarily with the inalienable rights of the individual is evident in the wording of the entire bill of rights.

  For a religious group to claim First Amendment protection for its right to alienate citizens of their First Amendment right to free speech is a most perverse concept. I would love to embarrass them on this issue, but they forbade me from pursuing the higher education required for admission to law school.
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  Skedaddle

  Thank you defender, it made good reading.

  Seems to me the way forward is to do a multi-religion e-petition to the government. There's a number of religions practicing shunning and with the use of Youtube, it's easy to unite... so why aren't we making use of the e-petitions to change the law in our governments?

  Am I being naive? I know Cedars has this EU shunning petition going with some friends of his... what's happening in the US? I saw a thread from 4 years ago but 16 pages is a lot to read. Any update on that?
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  Giordano

  The issue of coercion was not brought up. Being shunned if you refuse to shun the person that was DA or DF. Especially close family members.

  Of particular concern regarding families is the propensity to also shun a family members innocent children as if they too need to be punished.

  We also hear of many cases where a parent or close family member becomes seriously ill and no notification is given to the shunned person not even a funeral notice.

  One would think this should be 'Family Business' instead family business seems to be limited to Business, loans, liens, title claims etc.

  One final thought: in which Paul voluntarily withdrew from the Jehovah's Witnesses in 1975, only to have the governing body of the church amend its rules in 1981 to provide for the shunning of persons who had left voluntarily.

  
  The amended rules for people who elected to DA themselves went into effect for two reasons....one was to be able to shun those who disagreed with any teaching of the Society and to have a reason to shun Raymond Franz.

  Ray was a good friend of his mentor and landlord even working on occasion for him. His friend had Dissociated himself a few years before Ray and his wife came to live on his property. The Elder's in the congregation Ray attended or was assigned to were told to keep an eye on Franz and they caught him having lunch with this ex JW. With that the Elders DF Ray. The Society thought they got the best of Ray until Crisis of Conscience came out in 1983
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  defender of truth

  Giordano an hour ago

  The issue of coercion was not brought up. Being shunned if you refuse to shun the person that was DA or DF. Especially close family members.

  Firstly, have you read the whole paper?

  That point was mentioned, even here in the few parts that I quoted in my second post:

  "Members of the Jehovah's Witness community are prohibited-under threat of their own disfellowship-from having any contact with disfellowshipped persons and may not even greet them." Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875, 876

  see also J. BERGMAN, JEHOVAH'S WITNESSES AND KINDRED GROUPS at xxiii "(1984) (discussing how dissenting Witnesses, who in 1938 voluntarily left the Society because of doctrinal differences, were "treated with indignation and animosity by their former brothers").

  Family members are required to shun other family members who are disfellowshipped.
  

  When families are involved however, or economic interests are at stake, a blanket refusal to recognize a cause of action for the former member goes too far the other way.

  The former member is effectively foreclosed from changing her beliefs or taking issue with church authorities...

  [because she is at risk of losing her family]

  The second difficulty in applying the Sherbert rationale to shunning cases, is that free exercise issues will almost always apply to both parties.

  For example, imagine that a woman has been a member of a religious group for ten years. During that time, she has married, had children, and built a business that depends largely on trade with members of the group. The woman becomes embroiled in a doctrinal dispute with the group, and the group expels her. According to the group's beliefs, all persons expelled must be shunned. Therefore, even though the woman's husband has great love for his wife, the group elders order him, on pain of expulsion, to cease all physical and emotional contact with her. The children are also instructed to shun their mother, and individual members of the group stop doing business with her. The marriage ends in divorce and the woman sues the group and the elders for alienation of her spouse's affection.
  

  As for 'not bringing up coercion', you have to read it carefully.

  This is all written from a legal perspective, remember, not an article about cult control.

  I was amazed by how much work went into this...

  Here are a few quotes, again taken from my above post, which is only a sample of a 32 page document.

  First, assuming that smaller religious sects are comprised mainly of converts from other, more "mainstream" sects, the threat of sanctions may persuade converts to remain faithful to their new sect after the first blush of inspiration wears off.

  This appears to have been the case with the Jehovah's Witnesses, who adopted the practice of "disfellowshipping" sometime during the middle part of this century-in apparent response to the group's rapid growth.

  The Mennonites and the Jehovah's Witnesses comprise relatively small, but cohesive, segments of their surrounding populations.

  The experiences of Robert Bear illustrate the strength of pressures to conform in the Mennonite church:

  "I should have known how submissive the church had [my wife] to do its bidding out of fear of losing 'unity' with the one 'pure' body, for her to turn so completely against a husband she had lived with for thirteen years." R. BEAR, supra note 5, at 38.
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  defender of truth

  It was written nearly 30 years ago, but here is the author, should anyone wish to contact him.
  ------------
  "Author: Justin K. MillerPublication: University of Pennsylvania Law Review
  Date: 11/1988 "
  www.scholarship.law.upenn.edu/penn_law_review/vol137/iss1/6/
  "Justin graduated from the University of Pennsylvania Law School, cum laude, in 1989, where he was a Comment Editor for the University of Pennsylvania Law Review and Order of the Coif. He received a B.A., magna cm laude, from the University of Pennsylvania in 1983."
  www.larssonlaw.com/team/attorneys/justin-k-miller/
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  Giordano

  Your right Defender of Truth coercion was indeed mentioned in this excellent argument re shunning. I jumped past the reference. Always a danger when one frames a response before one is finished reading.

  Here is another site that may be of interest to you:

  http://church-discipline.blogspot.com/search/label/JW