«DISCIPLINE FOR THOSE WHO HAVE FALLEN AWAYReligious groups have long practiced forms of internal discipline for members who have strayed. Within the early Christian tradition, discipline could involve public abasement or exclusion from the Christian community. Relying in part on biblical passages, a few groups continue to practice particularly rigorous forms of discipline and exclusion, revealing wrongs publicly and avoiding excommunicated former members to a much greater degree than they avoid other nonmembers. As Carl Esbeck summarizes [Carl H. Esbeck, "Tort Claims against Churches and Ecclesiastical Officers: The First Amendment Considerations", 89 West Virginia Law Review 1 (1986-1987), pp. 40-62] the view of Menno Simons, “[T]hose who are excommunicated are to be avoided completely, not merely treated as strangers.”
Shunning of Insiders
When members of a religious group together avoid contacts with a member or former member, the practice is usually called shunning. Even though any individual is free legally to avoid contacts with another individual, people who organize together to refrain from contact may commit a civil wrong. In many states, organizing a boycott of a business is a tort. In regard to marriage, even one person’s urging another to avoid contact with his spouse may constitute a civil wrong. And whether or not shunning amounts to a more specific tort, a shunned person may claim he has suffered the intentional or reckless infliction of emotional distress.
For the churches that isolate members who stray, including groups in the Mennonite tradition and Jehovah’s Witnesses, shunning aims at repentance and restoration, increasing the offender’s shame and preventing the faithful from becoming contaminated. In some modern churches, all members shun their former associates in business and social affairs, and married partners avoid both physical and social contact with wayward spouses. Those joining churches whose discipline includes shunning usually are aware of the practice from the outset.
Courts considering complaints that religious shunning is wrongful may adopt one of three broad approaches. They may treat religious motivation as irrelevant, as did Employment Division v. Smith; they may turn religiouspractice into a virtually absolute defense; or they may somehow weigh religious practice against public need. Whatever the precise import of Smith in respect to religious shunning, common-law doctrines that forbid it can burden corporate religious life. For this reason, state courts, by common-law or constitutional interpretation, should impede shunning of members and former members by religious groups only if the government establishes a strong interest in doing so.
Various state decisions support this conclusion, but reach divergent practical results. In 1975, the Supreme Court of Pennsylvania, although using compelling interest language then embodied in the federal constitutional standard, took a view favorable to the shunned former member. Church officials argued that even if Mr. Bear’s claims that he was shunned by church members, including his wife, were all true, the Free Exercise Clause provided a complete defense. The court responded that “the shunning may be an excessiveinterference 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.” The court’s opinion implied that the state’s interests against shunning were powerful enough to allow Bear to recover if he could show at trial that church officials had acted as he asserted.
In 1987, the Court of Appeals for the Ninth Circuit also used compelling interest language but reached substantively different conclusions. Paul, who had been “disfellowshipped” [sic] from the Jehovah’s Witnesses, claimed he had suffered emotional disturbance, alienation of affections, and harm to reputation. The Ninth Circuit said, “We find the practice of shunning not to constitute a sufficient threat to the peace, safety, or morality of the community as to warrant state intervention.” It continued, “Intangible or emotional harms cannot ordinarily serve as a basis for maintaining a tort cause of action against a church for its practices—or against its members.” The Alaska Supreme Court, in 2001, quoted from Paul and determined that the emotional harm to an individual from shunning “as such is not a threat to the public.”
The Bear and Paul courts diverged over a fundamental issue: Does the state have a compelling interest in the quality of life of a few individual adult members of society, when any impairment will have only a slight influence on the larger culture? Without doubt, protecting a few individuals can constitute a compelling interest, in American legal understanding. When the lives of children are at stake, courts may require medical procedures their parents do not want, a topic we take up in chapter 21. And Yoder assumes that educational impoverishment of even a few children is something the state can avoid. But what about adults who suffer harms less severe than death or bodily injury?
That shunning can be truly devastating for the individuals who suffer it is a reason for the state to intervene. But the fact that individuals separately are undoubtedly free to do what their leaders encourage them to do together casts doubt on whether the encouragement should lead to liability. Shunning differs from physical assault, slander, and other torts that are wrong even if committed by an isolated individual. That the wrongs committed by shunning do not impinge on vital state interests is shown by the infrequency of recovery for group boycotts that are not motivated by economic gain, and by the widespread abolition of recovery for alienation of a spouse’s affections.
At least when adults have voluntarily become members of a religious group that they know engages in shunning, the state lacks a compelling state interest in protecting them from the financial and emotional consequences of that practice. It is not that their joining the group binds them legally to accept any penalties the group may inflict, or eliminates the state’s interest in their welfare vis-a`-vis that of the group. Rather, their voluntary acceptance of membership reduces the urgency of the state’s interest, so that it does not override the group’s fundamental freedom to exercise a form of religious practice whose historical pedigree is extensive, however unpalatable it may be to modern sensibilities.
Of course, shunning does reduce the freedom of individuals who face that sanction to practice religion as they see fit. A man aware that his family will shun him if he rejects the church has a powerful incentive to remain faithful, at least in outward appearance. Although this inhibiting effect is disturbing, most of a group should not have to forego what it believes is vital religious practice so that individual dissidents will have maximum freedom of choice at a particular moment.We need to remember that deciding what maximizes freedom over time is no simple exercise. Individuals may wish to join religious groups with strong cohesiveness and discipline. If the law undermines forms of discipline, as by forbidding shunning, it eliminates or erodes the liberty of individuals to join groups whose cohesiveness rests partly on stringent discipline. Within a liberal democracy, the government’s aim, as I have argued in the last chapter, should be to allow freedom of religious practice, not to encourage the religions that most recognize individual autonomy in the realm of religion. The law should not be designed to favor religious groups with little discipline over those with strong discipline.
Should a privilege to shun be limited to religious groups or extended to other groups? We could imagine that an organization devoted to political and social principles might feel so betrayed by a member that expulsion and shunning would seem an appropriate response. A group advocating animal rights might learn that a member continues to participate in fox hunting or to model fur clothing, for example. Although it may have more difficulty than a religious group in showing that shunning is related in some crucial way to its associational identity and purposes, a nonreligious expressive group should have the same privilege, if it can make this showing. That result could be achieved under the common law or as an aspect of free speech.
One argument for a privilege for expressive associations is that their internal discipline should itself count as an expressive activity. The religious message that a church projects to nonmembers is affected by the behavior of its members and by its disciplinary practices, and the same might be true about the nonreligious message of an organization for racial justice or environmental quality. However, forms of discipline, especially those otherwise amounting to civil wrongs, should not generate privileges unless an extra ingredient is present, a way in which a particular form of discipline carries forward the group’s self-understanding.
Any privilege to shun should probably be limited to groups. Isolated individuals who act on their own to insist that others avoid contact with someone should not be given a defense to a civil suit, even if their motivation is religious and the victim is a former associate. Allowing such a defense would place some individuals too much at the mercy of others who have idiosyncratic religious missions or use religion as a cover to conceal more malign motives.»
* Kent Greenawalt,
Religion and the constitution, Vol. 1: Free exercise and fairness
[Η Θρησκεία και το Σύνταγμα, Τόμ. 1: Ελεύθερη Άσκηση και αμεροληψία],
Princeton University Press, 2006,