The first amendment to the United States Constitution provides that
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This guarantee is applicable to the states through the fourteenth amendment. Government is thus under dual constraints when it acts in ways that affect religion. Although the text sounds absolute, “no law” does not always mean “no law.” The Supreme Court has had to place some limits on the freedom to practice religion.
To take an easy example cited by the Court in one of its landmark “free-exercise” cases (Reynolds v. U.S., 1878), the First Amendment would not protect the practice of human sacrifice even if some religion required it. In other words, while the freedom to believe is absolute, the freedom to act on those beliefs, at least at that time, was not.
But where might government draw the line on the practice of religion? The courts have struggled with the answer to that question for much of our history. Over time, the Supreme Court developed a test to help judges determine the limits of free exercise. First fully articulated in the 1963 case of Sherbert v. Verner, this test is sometimes referred to as the Sherbert or “compelling interest” test.
Sherbert v. Verner
Adele Sherbert, a Seventh-day Adventist, worked as a textile-mill operator. When her employer switched from a five-day to a six-day week, Sherbert faced a problem – she could not work on Saturdays because her religion forbade it (Saturday is the Sabbath). She was consequently fired by her employer when she refused to work on that day; unable to find suitable work, she filed for unemployment compensation.
The lower courts denied Sherbert any benefits on the grounds that she did not accept available work from three other employers who wanted her to work on Saturdays; thus, she failed to accept suitable work without good cause. They asserted that it would be easier to deny her benefits than to ascertain if her actions were sincere. However, she eventually appealed to the Supreme Court, contending that her free exercise rights had been violated.
The Free Exercise Clause is a clause in the First Amendment of the United States Constitution that protects a person’s right to freedom of religion from government interference. In view of this clause, the Court held that denying unemployment benefits to Sherbert imposed a burden on her free exercise rights and was forcing her to choose between her religion and her vocation. Allowing others to respect the Sabbath on Sundays—but not Sherbert’s worship on Saturdays—was unfair.
In contrast, when a religious group asserts a free exercise defense against a common law claim such as alienation of spousal affection, the state’s interests are more likely to be obscure and the ethical dilemma occurs. So, the difficulty in applying the Sherbert rationale to shunning cases, is that free exercise issues will almost always apply to both parties.
The following is taken from East of Eden: A Contractual Lens for an Unsettled Area of First Amendment Shunning Jurisprudence by Austin J. Rogers:
Shunning Jurisprudence: A Constellation of Confusion
American courts have applied different frameworks and standards to similar factual scenarios in shunning cases. This variance is perhaps best illustrated by three seminal cases: Bear v. Reformed Mennonite Church,[1] Paul v. Watchtower Bible & Tract Society of New York, Inc.,[2] and Guinn v. Church of Christ of Collinsville.[3] Bear represents an early iteration of shunning jurisprudence in which the Supreme Court of Pennsylvania was reticent to grant broad constitutional immunity to a religious practice that harmed church members. Guinn and Paul, by contrast, represent more developed—yet distinct—iterations of shunning jurisprudence. While the court in Guinn exhibited an overreliance on consent and membership to its detriment, Paul advanced a framework more consistent with organizational free-exercise principles. Fundamentally, though, all three cases demonstrate the need for a more searching legal solution to shunning.
1. Bear v. Reformed Mennonite Church: A Primitive Forerunner.
Shunning is an integral component of the Mennonite faith. In Bear v. Reformed Mennonite Church, plaintiff Robert Bear challenged his Mennonite church’s shunning practices by suing and alleging that the church collapsed his business and family. Although the lower court took the view that the Free Exercise Clause was an affirmative defense à la Sherbert, the Pennsylvania Supreme Court overturned the lower court and maintained that it may be possible for Bear to recover.
Decisive for the court was the fact that, under Sherbert, “the ‘shunning’ practice of appellee church . . . 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.” Thus, the First Amendment did not provide the church with an absolute privilege against Bear’s religious-tort claim. Under Bear, then, protecting marital, familial, and business relationships might provide the government with a sufficient basis for curtailing treasured free-exercise interests, even under Sherbert’s “compelling interest” standard. So even though Bear’s holding is unambitious and its reasoning shallow, it shows that a court might potentially find shunning to constitute an abuse so “grave” that not even a heightened free exercise defense will pass muster. “. . . [T]he Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for `even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.’ Braunfeld v. Brown, 366 U.S. 599, 603, 81 S. Ct. 1144, 6 L. Ed. 2d 563. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.”
2. Paul v. Watchtower: A Near-Absolute Free-Exercise Privilege.
Paul v. Watchtower Bible & Tract Society of New York, Inc. is situated on the opposite end of the First Amendment spectrum from Bear. In Paul, the Ninth Circuit extended much greater protection to congregational practices and exhibited much less concern for the shunned plaintiff’s recovery. However, the facts of Paul fail to account for this difference.
In Paul, plaintiff Janice Paul—a member of a Jehovah’s Witness church—voluntarily withdrew herself from her congregation. This made her a “disassociated person” according to Jehovah’s Witness teaching, a status that bore little consequence at that time.[4] Shortly thereafter, the Governing Body of Jehovah’s Witnesses changed its previous doctrine concerning disassociated persons, and members were told to treat Paul like a “disfellowshiped person”—that is, to refrain from talking to her altogether.[5] After being rejected and ignored by numerous congregants, Paul sued for “defamation, invasion of privacy, fraud, and outrageous conduct.”
Applying Washington state law, the Ninth Circuit affirmed the district court, which granted summary judgment to the church on First Amendment grounds. Analogizing to the First Amendment’s treatment under New York Times Co. v. Sullivan, the court reasoned that “[i]mposing 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.” Extending this logic, the court asserted that “[a] religious organization has a defense of constitutional privilege to claims that it has caused intangible harms—in most, if not all, circumstances.”[6] According to the court, then, even if Paul did set forth a prima facie tort claim, the defendants enjoyed a complete First Amendment privilege to dignitary torts. Employing the Sherbert triad, the court further found that shunning did not present a “sufficient threat to the peace, safety, or morality of the community as to warrant state intervention.” Accordingly, society must tolerate offensive religious practices (like shunning) in order to afford religious congregations sufficient breathing space for free exercise. Paul, too, had to tolerate the shunning, as she was unable to recover from the church.
Another important feature of the court’s analysis was its treatment of membership. Beyond Paul, several jurisdictions regard membership as dispositive to a free-exercise analysis. If a person is no longer a member of a religious community—and, as such, is only a former member—then a court might be more prone to award tort damages. But to the Ninth Circuit, Paul’s former membership status weighed against her case for recovery. As long as the church “impose[d] discipline on members or former members,” it enjoyed “great latitude” to do so. Membership remains an important component of the constitutional inquiry, but in a way that does not meaningfully differentiate between current and former members. Thus, Paul highlights the disparate frameworks that courts apply to religious organizations, as well as the varied criteria that factor into courts’ free exercise calculi. Guinn v. Church of Christ of Collinsville further exposes this striking disconnect.
3. Guinn v. Church of Christ Collinsville: Tort Liability, Sooner or Later.
In Guinn, the Supreme Court of Oklahoma examined a church’s disciplinary actions against a parishioner who unilaterally withdrew her membership. Parishioner Marian Guinn joined the Collinsville Church of Christ in 1974 and enjoyed a harmonious relationship with the church for six years. However, in 1980, pursuant to the church’s disciplinary procedures,[7] the elders confronted Guinn several times and exhorted her to discontinue her sexual relationship with a male Collinsville resident. These attempts to elicit repentance were very intrusive. For example, the elders confronted Guinn at a laundromat and even at her own residence, instructing her that “if she did not appear before the congregation and repent of her fornication sin, [they] would ‘withdraw fellowship’ from her.” During the latter “driveway incident,” Guinn communicated to the elders that she wished to be left alone and would not confess anything to the congregation; she subsequently ceased to attend church.
The elders then sent Guinn a letter, warning her that they would withdraw her fellowship and inform the congregation of her “fornication” if she did not comply with the church’s disciplinary doctrine. In response, Guinn and her lawyer sent the elders letters imploring them not to expose Guinn’s private life. Guinn’s letter also explicitly withdrew her membership from the congregation. On October 4, 1981, the church elders nevertheless divulged her “fornication” to the Collinsville congregation and four other area congregations.
As a result, Guinn sued the church for intentional infliction of emotional distress and invasion of privacy. After the trial court overruled the defendant elders’ demurrers, it submitted the case to the jury, which awarded Guinn actual and punitive damages in the amount of $434,737. On appeal, the Supreme Court of Oklahoma concluded that Guinn could not recover for the church’s pre-withdrawal disciplinary actions, but she could recover for its post-withdrawal tortious actions.
Membership again played a central role in the case. According to the church’s doctrine, members could not disassociate themselves from the church by withdrawing membership—as in a family, they were members for life. Therefore, the church asserted that “[a] court’s determination that Parishioner effectively withdrew her membership and thus her consent to submit to church doctrine would . . . be a constitutionally impermissible state usurpation of religious discipline accomplished through judicial interference.” The church further argued that its disciplinary procedures were already commenced before the plaintiff had withdrawn her membership. Consequently, it was entitled to carry out the remainder of the already-commenced disciplinary practices.
The court disagreed, reasoning that just as the Free Exercise Clause protects a religious institution’s free-exercise rights, so too does it secure an individual’s right to recede from a religious allegiance.[8] This individual right, the court maintained, cannot be extinguished unless a parishioner manifests a “knowing and intelligent waiver” of it.[9] Because Guinn did not knowingly waive her free-exercise right, she could unilaterally withdraw her membership from the church at any time—albeit only in written form.[10] So for the court, inherent to the individual’s right to freely worship is the right not to worship. This individual free-exercise right cannot be occluded by the institutional free-exercise rights of the congregation.
The court’s treatment of consent also raised significant free exercise questions. Claiming complete consonance with the Ninth Circuit’s reasoning in Paul, the Guinn court stated that the dispositive issue before it was whether Guinn had consented to the church’s disciplinary measures. Before Guinn’s letter to the church, she had; after her letter, she had not. Because consent was a requisite for the church’s disciplinary measures, the court held that she could not be subject to the church’s post-withdrawal disciplinary practices and could accordingly recover damages from the church.
Finally, the Guinn court distinguished the disciplinary proceedings of the Collinsville Church of Christ from the disciplinary proceedings that took place in Paul. It observed that the post-resignation measures in Paul were passive, whereas the measures from the Collinsville church were invasive and active. The court accordingly reasoned that “religiously-motivated disciplinary measures that merely exclude a person from communion are vastly different from those which are designed to control and involve.”[11] The church’s measures constituting the latter, its conduct was actionable.
Justice Wilson dissented from the majority’s insistence that a formal written statement be a prerequisite for withdrawing church membership. Instead, she argued that words and conduct which clearly express an individual’s rejection of doctrine should be sufficient. She therefore advocated a more functionalist view of church membership than did the majority.
For his part, Justice Hodges dissented in toto and proposed a contract paradigm for analyzing church membership and consent. He argued that Guinn voluntarily joined the church and, upon doing so, she submitted to its laws and surrendered her religious liberty to the extent that it would grant her relief from church discipline in tort. The elders were therefore entitled to believe that Guinn was a member for life and to carry on their disciplinary proceedings. Thus, Justice Hodges argued that “the Church and the Elders were constitutionally protected under the First Amendment from civil liability to discipline Parishioner by the withdrawal of fellowship proceedings both during her church membership and after her unilateral withdrawal from the Church.” This position aligns more with the constitutional reasoning in Paul and, hence, more with an institutional lens for free-exercise protection.
To recap, the courts in Bear, Paul, and Guinn reached vastly different conclusions regarding similar instances of shunning, and all staked their holdings on different lines of legal reasoning. These foundational cases typify the way that shunning analysis varies widely from court to court, especially vis-à-vis the concepts of consent and membership. The court in Bear found for the shunned person with little attention given to consent or membership; instead, the Bear court suggested that protecting individuals through tort liability could serve as a compelling government interest. The court in Paul, on the other hand, did not view consent or membership to be dispositive given its robust view of the First Amendment’s protection of shunning practices. And the court in Guinn made consent and membership central to its analysis, thus elevating individual free-exercise liberties. In an area of such great constitutional consequence, such dissonance is cause for alarm. (East of Eden: A Contractual Lens For An Unsettled Area of First Amendment Shunning Jurisprudence by Austin J. Rogers pgs. 1287-1295)
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.
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[1] Bear v. Reformed Mennonite Church, 341 A.2d 105 (Pa. 1975)
[2] Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875 (9th Cir. 1987).
[3] Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Okla. 1989)
[4] At the time Paul withdrew her membership from the Jehovah’s Witness community, there was “no express sanction” for being a disassociated person. “In fact, because of the close nature of many Jehovah’s Witness communities, disassociated persons were still consulted in secular matters, e.g. legal or business advice, although they were no longer members of the Church.” Indeed, even after Paul moved away from the area, she returned to the community in 1980 and “saw Church members and was warmly greeted.”
[5] “‘Disfellowshiped persons’ are former members who have been excommunicated from the Church. One consequence of disfellowship is ‘shunning,’ a form of ostracism.”
[6] It is difficult to extrapolate what sort of harm would have led the Ninth Circuit to find liability. The court granted wide latitude to religious entities to exercise their doctrines. However, the court did not say much about what sort of tangible harms—for example, bodily or economic injury—could give rise to tort liability. . But the court’s language along these lines was telling: The test for upholding a direct burden on religious practices is as stringent as any imposed under our Constitution. Only in extreme and unusual cases has the imposition of a direct burden on religion been upheld. . . . The harms suffered by Paul as a result of her shunning by the Jehovah’s Witnesses are clearly not of the type that would justify the imposition of tort liability for religious conduct. No physical assault or battery occurred. 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.
[7] This procedure was dictated by a literal interpretation of the Bible: [I]f thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as a heathen man and a publican. (quoting Matthew 18:13–17 (King James)). A literal interpretation of this passage has led to numerous ecclesial shunning practices and legal disputes
[8] “No real freedom to choose religion would exist in this land if under the shield of the First Amendment religious institutions could impose their will on the unwilling and claim immunity from secular judicature for their tortious acts.”. To support this conclusion, the court drew upon Torcaso v. Watkins, 367 U.S. 488, 495 (1961), which upheld an individual’s right not to worship. Guinn, 775 P.2d at 776 & n.38.
[9] The court did not discuss what such a waiver would entail, only that it would at least require a parishioner’s knowledge of her individual free-exercise rights and the attendant circumstances conditioning those rights, her volitional capacity to relinquish those rights, and her intention to do so—all conspicuously manifested. Guinn alleged that she was not taught about the church’s doctrine that membership is an insoluble, lifetime bond. Therefore, the court concluded that “[t]he intentional and voluntary relinquishment of a known right required for a finding of an effective waiver was never established.”
[10] Even though Guinn halted church attendance and expressed her desire to be left alone, the court found that only her letter severed her membership ties.
[11] The court’s passive-active distinction is specious. Indeed, inactive conduct can be just as potent and effective as active conduct. And even though numerous courts have relied on this analytical distinction, see, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 552–58 (2012) (employing the passive-active rationale to support its holding), jurists are right to criticize it for being too legally and philosophically amorphous. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025–26 (2017) (Gorsuch, J., concurring) (criticizing the passive-active distinction in a broader critique of the religious status-use distinction). The Guinn majority’s use of the passive-active distinction to distinguish Paul was therefore questionable. For the sake of brevity, however, this Note will not explore the issue any further.