Forming Religious Communities and Respecting Dissenter's Rights: A Jewish Tradition Model for a Modern Society

Michael J. Broyde



IV. Shunning and Excommunication in American Tort Law The application of religious doctrines do not live in a vacuum. The way American tort law rewards or punishes certain behavior -- including religious behavior -- very much affects the frequency of the behavior. This section surveys the various theories advanced in American tort law cases that are used to discuss causes of action for harm inflicted through religions' excommunication or shunning. The Ninth Circuit Court of Appeals notes an obvious truth about the relationship between tort law doctrines and religious practices when it states: Permitting prosecution of a cause of action in tort, while not criminalizing the conduct at issue, would make shunning an "unlawful act." Imposing tort liability for shunning on the Church or its members would in the long run have the same effect as prohibiting the practice and would compel the Church to abandon part of its religious teachings.82 The Jewish tradition frequently confronted this issue in the many Eastern European communities where the government outlawed the use of excommunication and shunning. Not surprisingly, when confronted with significant governmentally imposed sanctions against this practice, the Jewish authorities ceased using exclusion as a method of community formation or maintenance.83 There are two basic issues that are worthy of being raised when one ponders the proper secular legal response to excommunication and shunning. The first is the applicability of the tort of intentional infliction of emotional distress84 and other tort law doctrines that impose liability in response to non-physical damages.85 The second is the applicability of First Amendment protection to provide positive immunity to religious groups that engage in conduct otherwise prohibited by tort law doctrines. These two doctrines are the counterbalances that form American tort law in this area. The reader is entitled to one caveat. The religious parameters relating to excommunication and shunning differ from religion to religion, and it is vitally important to grasp that these same terms mean drastically different forms of treatment towards shunned and excommunicated individuals depending on the faith group. For example, the Church of Scientology of California at one point -- and perhaps still86 -- adopted a policy of "fair game" towards individuals who are excommunicated. One court described the doctrine as follows: Under Scientology's "fair game" policy, someone who threatened Scientology by leaving the church "may be deprived of property or injured by any means by a Scientologist ... [The targeted defector]87 may be tricked, sued or lied to or destroyed.88 The State interest in protecting an excommunicated or shunned member from such practices clearly is greater than the interest in protecting a person from the more common version of religious shunning, which the Ninth Circuit described as follows: Members of the Jehovah's Witness community are prohibited -- under threat of their own disfellowship [shunning] -- from having any contact with disfellowshiped persons and may not even greet them. Family members who do not live in the same house may conduct necessary family business with disfellowshiped relatives but may not communicate with them on any other subject.89 Indeed, this is similar to the manner a person would be treated if excluded from the Jewish community, which sought to punish only through the removal from the community.90 This section of the paper will start with a categorization of the legal principles used in the various cases that discuss religious discipline,91 and will then propose a general theory of how American tort law should interact with religious groups that shun and excommunicate. The Numerous cases that address the problems of religious exclusion, shunning and excommunication apply one of three categories of legal rules: 1] Some courts hold as a matter of law that religious discipline can never be actionable when the disciplined member remains a member of the religious organization that is disciplining him or her.92 In this theory, consent proves to be the underlying defense to allegations of tortious misconduct by a religious organization. Absent membership in the faith, or after withdrawal from membership, the activities of the church are no different from any other organization in term of tort law treatment.93 The essential failure of this theory, in this author's opinion, is that it focuses on the status of the person being injured and misses one of the fundamental purposes of church discipline: to inform the faithful that a person's conduct violated the religion's tenets, and thus they have been excluded.94 To allow lawsuits, particularly for the intentional infliction of emotional distress or similar torts for the use of this information (even after resignation), deprives the religious organization of its ability to standardize the conduct of its members by publicizing cases of exclusion. The community is formed by publicly establishing norms of conduct. Such cannot be done under this legal rule, as the moment a person resigns from the church, the church loses any ability to announce their exclusion.95 2] Some courts have held that the "religiously motivated disciple is entitled to First Amendment Protection and cannot form the basis96" for a suit in tort.97 These courts, including the Ninth Circuit Court of Appeals, rule that: Because the practice of shunning is a part of the faith of [a religion], we find that the "free exercise" provision of the United States Constitution . . .98 precludes the plaintiff from prevailing. The defendants have a constitutionally protected privilege to engage in the practice of shunning.99 The most significant failure with this approach is that it places outside the scope of governmental regulation potentially egregious conduct.100 Indeed, a very strong case can be made that the current interpretation of the First Amendment does not require that government immunize religion from tort laws that are generally applicable. Whatever the merits of Employment Division v. Smith101 in the context of criminal law, one could see very significant problems developing were religions to be granted general tort law immunity for all conduct which is religiously directed or compelled.102 Even limiting such an immunity to "intangible or emotional harm103" provides a level of immunity to a religious practice that would leave many uncomfortable.104 Notwithstanding one commentator's endorsement of this "First Amendment" approach of complete immunity,105 the fact remains that the granting of immunity in the face of religiously motivated tortious conduct can produce profoundly negative consequences and gives religion a license to injure enjoyed by no one else. 3] The third theory rules that shunning or excommunication can be -- by itself -- tortious conduct subject to liability. This theory assumes that the state interest in preventing shunning and excommunication is strong enough to allow state interference in all of these decisions. The first case to adopt this posture, Bear v. Reformed Mennonite Church106 advanced this argument in its simplest form: In our opinion, the complaint, in Counts I and II, raises issues that the 'shunning' practice of appellee church107 and the conduct of the 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. Other courts have also agreed with this basic approach, and ruled that shunning and excommunication are actionable conduct even when it is unaccompanied by any other activity.108 This approach has the potential in it to vastly limit the scope of religion's right to self-associate and exclude others. If in fact, as Bear rules, the Constitution provides no protection from tort law liability for interfering with a spousal relationship when a minister announces that associating with a particular person -- even by that person's spouse -- violated the rules of the Faith, tort law has accomplished what no other set of legal rules can do under the Constitution. It has prevented a Faith from announcing its opinion on the ethical conduct of a portion of society, even when the faith makes no attempts to coerce compliance with its doctrines or punish adherents of other faiths.