While the right of a particular religious group to have a shunning policy should be protected under the U.S. Constitution, along with those in the group desiring to adhere to that policy, the rights of individuals to disagree should also be protected. An individual should have the right to choose to become a member of any religion. But his right to leave that religion without penalty should also be respected.
The following is a plea for an investigation into the complaints of those suffering from religious abuse of authority.
“Then he went on to tell them an illustration about the need for them always to pray and not to give up, 2 saying: “In a certain city there was a judge who had no fear of God and no respect for man. 3 There was also a widow in that city who kept going to him and saying, ‘See that I get justice from my legal opponent.’ 4 Well, for a while he was unwilling, but afterward he said to himself, ‘Although I do not fear God or respect any man, 5 because this widow keeps making me trouble, I will see that she gets justice so that she will not keep coming and wearing me out with her demand.’” 6 Then the Lord said: “Hear what the judge, although unrighteous, said! 7 Certainly, then, will not God cause justice to be done for his chosen ones who cry out to him day and night, while he is patient toward them? 8 I tell you, he will cause justice to be done to them speedily. Nevertheless, when the Son of man arrives, will he really find this faith on the earth?” (Luke 18:1-8)
An ethical dilemma is a situation in which there is a difficult choice to be made between two or more options, neither of which overrides the other. Two ethical requirements are conflicting if the agent can do one or the other but not both: the agent has to choose one over the other. Two conflicting ethical requirements do not override each other if they have the same strength or if there is no sufficient ethical reason to choose one over the other. The resulting paradox makes it impossible to resolve the situation in a manner that is consistent with accepted ethical guidelines.
Ethical dilemmas can be divided according to the types of obligations that are in conflict with each other. For example, Rushworth Kidder suggests that four patterns of conflict can be discerned: “truth versus loyalty, individual versus community, short term versus long term, and justice versus virtue”.[1] Such dilemmas “arise when, faced with a difficult situation (e.g. fair treatment for some versus job security for others), two or more such values conflict in the perception of a decision-maker.
In the novel Sophie’s Choice by William Styron , a cruel dilemma is portrayed when a Nazi guard forces Sophie to choose one of her children to be executed, adding that both will be executed if she refuses to choose.
How Does Religious Shunning Pose an Ethical Dilemma for the Courts?
The first amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. Free-exercise clauses of state constitutions which protected religious opinion, expression of opinion, and practice were all expressly protected by the Free Exercise Clause. The Clause protects not just religious beliefs but actions made on behalf of those beliefs, although in the past a distinction was made between beliefs and actions.[2] More importantly, the wording of state constitutions suggest that free exercise envisions religiously compelled exemptions from at least some generally applicable laws.
However, as noted, the Free Exercise Clause was intended to protect not just the rights of religions to operate as they see fit. It also was designed to protect individual rights:
“The guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom-not only for a minority, however small-not only for a majority, however large-but for each of us.”[3]
“Unlike other cases involving government regulation, shunning cases often implicate competing First Amendment rights: those of the religious group and those of the shunned party. That is, the Free Exercise Clause secures the freedom of a religious group to worship as it sees fit (including through disciplinary practices), just as it secures the freedom of the individual to worship as he/she sees fit (including through his/her dissociation from the community). Which liberties should trump? Courts and commentators differ in their responses.[4]
If the free exercise of religion is a guaranteed right to each individual under the U.S. Constitution, how can religious institutions be permitted to deny those same rights from its members by demanding its’ members shun those that choose to leave?
Let’s put the court in the place of Sophie of Stryon’s novel. The constitution demands that it protects the right to free exercise of religion. However, according to church policy, anyone leaving the religion must be shunned by all members. This is not optional.
Suppose a member of the church, a father, is torn because his son has decided to leave the religion. The father is not allowed to question the validity of the shunning policy and is warned that if he shares his disagreements with other members he too will be shunned. Both the father and son claim that their free exercise rights are being violated by the mandated shunning policy of the church. The son is threatened with the loss of a relationship with his father, while the father is threatened with being shunned by those in his religion if he associates with his son. The court is asked to choose, but it cannot defend the interests of both the religion and the individual members of that religion.
But is this a fair comparisont? In the case of shunning, is the court asked to choose between upholding the right to free exercise of one party at the expense of the other? Or, rather, is it asked to decide which party causes the greater harm to the other in the exercise of that right? It will later be demonstrated that the court has acknowledged the harmful effects of shunning on the recipient. The question is what harm is there to the religion for allowing family members to associate with a former member? What sufficient ethical reason is there to choose the right of the religion over the right of individual members in this case?
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, as well as those desiring to associate with those that choose 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.[5]
While the right of a particular religious group to have a shunning policy should be protected, along with those in the group desiring to adhere to that policy, the rights of individuals to disagree should also be protected. If the policy is enforced then the rights of individual members to disagree are being violated. Let’s return to the question: What sufficient ethical reason is there to choose the right of the religion over the right of individual members in this case?
Why is Religious Shunning Practiced?
When a religious group reserves the right to remove from its membership any that refuse to follow the guidelines and require remaining members to limit social fellowship with ousted members this is known as shunning. The University of Pennsylvania Law Review gives some insight into the reason for this practice:
“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. 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 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. Furthermore, converts entering a new sect frequently retain strong ties to family or other groups outside of the new religion. A strong sanction against leaving or backsliding will counteract the temptations and pressures applied by family members and friends to convince the recent convert to abandon the new sect. A second explanation for shunning is that it reinforces important distinctions between members of the group and nonmembers. This rationale seems most applicable to groups with lifestyles that differ significantly from the surrounding culture. Hence, the practice of meidung, or shunning, is deeply rooted in the Old Order Amish and Reformed Mennonite churches, for whose members a distinctive lifestyle is part and parcel of their religion. Indeed, for religions premised upon resisting the influences of the changing world, it is no surprise that the distinction between “us” and “them” assumes critical importance.” (University of Pennsylvania Law Review vol. 137:271 pgs. 283-284)
From this it would appear that the burden placed on the shunning practices of a religious group poses a threefold threat:
- Doctrinal disunity
- Dwindling membership
- Loss of distinctiveness.
However, when looking at these three areas it appears that both doctrinal unity and distinctiveness can be preserved by simply removing from membership those that disagree and refuse to follow the lifestyle. Those that remain would continue to be united doctrinally and continue to carry on the distinct lifestyle. The only thing that shunning accomplishes is controlling the loss of membership by instilling a fear of losing all social and familial connections. How does this compare with the harm experienced by individuals that lose those connections as a result of shunning?
Jehovah’s Witnesses view disfellowshipping and shunning as loving discipline aimed at recalling a sinner to his senses, helping him to see the need to repent and return to the group. Under the first amendment, it would not be constitutional for courts to dictate how a church disciplines its members. But it should be unlawful for religions to require their members to shun those that are by choice no longer members, nor to harass and threaten to punish them if it is their desire to do so. Especially should this be the case in situations that involve close family relationships. Such a decision of the court would neither place a burden on the right to free exercise of the church nor on its members. Both would be allowed to exercise their rights.
The next article will be devoted to outlining some of the harmful effects of shunning.
[1] Kidder, R. M. (2005). Moral courage: Taking action when your values are put to the test. New York: William Morrow
[2] And reasonably this cannot be taken to mean that any and all actions are permissible simply because they have a basis in religious belief. See Reynolds v. U.S., 1878
[3] Sherbert v. Verner, 374 U.S. 398, 415-16 (1963) (Stewart, J., concurring).
[4] For a compendium of the various shunning cases that have addressed this sort of issue, see Richard L. Cupp, Jr., Comment, Religious Torts: Applying the Consent Doctrine as Definitional Balancing, 19 U.C. DAVIS L. REV. 949, 954 n.29 (1986).
[5] That the first amendment protects individuals at least as much as it protects groups is implicit in the establishment clause, which prohibits government from furthering the goals of religious groups. Furthermore, [T]he guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. . . . [Our Constitution commands the positive protection by government of religious freedom-not only for a minority, however small-not only for the majority, however large-but for each of us. Sherbert, 374 U.S. at 415-16 (Stewart, J., concurring in result)