VI. What is the Value of Excluding

This author is inclined to look at the fundamental values encapsulated by the practices of religious discipline, and determine which of these central values are worthy of governmental protection, and limit the privilege to cases where those values are furthered. As discussed in section II, the Jewish tradition recognizes two possible theoretical models for religious discipline: punishment of the offender on one hand, and formation of a community through exclusion on the other.¹²² The Jewish tradition opted for the second as the jurisprudential basis for its practice of exclusion.

Of these two models, only the second is worthy of tort law immunity and First Amendment protection. Punishment of individuals for violations of the law (religious or otherwise) is to be left to the governmental authorities (and God). Attempts by religious groups to use their many members or their economic might to punish people for violations should not be protected as a religious value. These are fundamental governmental prerogatives which should not, and may not, be delegated.¹²³ That is not, of course, to say that such conduct is always tortious; rather, as conduct by a religious group it should have no First Amendment protection. The assertion that a person who is punished by his former co-religionists for a violation of religious law is entitled to any less protection of his rights than others is difficult to support. In one case the court stated:

[Plaintiff] did not suffer his economic harm as an unintended byproduct of his former religionists' practice of refusing to socialize with him any more. Instead he was bankrupted by a campaign his former religionists carefully designed with the specific intent it bankrupt him. Nor was this campaign limited to means which are arguably legal such as refusing to continue working at Wollersheim's business or to purchase his services or products. Instead the campaign featured a concerted practice of refusing to honor legal obligations . . . owed [plaintiff] for services and products they already had purchased.¹²⁴

Religious conduct with the intent to punish -- if protected by tort or criminal immunity -- delegates to the sectarian community a core governmental authority. As noted by the Supreme Court:

At the time of the Revolution, Americans feared not only a denial of religious freedom, but also the danger of political oppression through a union of civil and ecclesiastical control.¹²⁵

Laurence Tribe in his treatise elaborates on this problem.

Even if a state ceded power to a church in a way that avoided any ongoing administrative entanglement, the action would be unconstitutional. ... [Under] the vesting entanglement¹²⁶ test, breadth is irrelevant so long as the power remains a traditionally governmental one.... Thus, any degree of vesting entanglement -- not merely excessive entanglement -- is prohibited.¹²⁷

More generally, government has an interest in preventing religion from punishing people who leave it; absent such protection, the freedoms of the First Amendment appear vacuous. The right of religious dissent is no less precious than the right of religious conformity.¹²⁸

I would suggest that a solid middle ground is implied in many of these cases. This middle ground provides a doctrinal basis for discussing secular legal responses to shunning and excommunication that neither protects religious rights to oppress those who scorn or violate the faith, and yet grants legal protection to a faith community's right to form its own insular sub-group and exclude people who violate the rules of the community.

The First Amendment should only protect the right of a faith community to exclude members; thus shunning, excommunication, and other methods of isolation are all protected only when they are used to exclude. However, claims based not on the need of the faith community to exclude, but on its need to convince the "unfaithful" to return, or to punish them for their violation, should be subject to scrutiny of tort and criminal law and no protection.

This approach can be found implicitly in a number of cases, although this distinction is not found as the controlling rule in any single case. For example, in Guinn, the Supreme Court of Oklahoma, after ruling that the crucial feature in determining protected status is membership, goes on to note that:

For purposes of First Amendment protection, religiously-motivated disciplinary measures that merely exclude a person from communion are vastly different from those which are designed to control and involve. A church clearly is constitutionally free to exclude people without first obtaining their consent. But the First Amendment will not shield a church from civil liability for imposing its will, as manifested through a disciplinary scheme, upon an individual who has not consented to undergo ecclesiastical discipline.¹²⁹

A similar result was reached by Judge Sifton writing in Gruenwald v. Bornfreund.¹³⁰ After discussing the protected status of a mere act of exclusion by any religious organization, Judge Sifton indicates that were the defendant to have proven that he would suffer "battery, trespass, or theft," or any other tortious act as a result of the excommunication or other conduct by a religious group, he would enjoin this conduct.¹³¹

The virtues of this approach are clear. Religious adherents must have the right to form their own sub-society. While the melting pot may be some people's image of an ideal American society, the rights of those who do not wish to melt, but wish to keep their own unique identity must be protected. These people have not only the right to avoid governmentally compelled blending, but also to avoid the internal confusion of allowing multiple voices to speak in the name of its faith-group. However, granting religious groups unfettered rights to stifle internal dissent creates the possibility that religions will use that right to compel religious orthodoxy or adherence to its religious norms. Such action also is contrary to (at the least) the spirit of the First Amendment.¹³² Focusing on the purpose of the exclusionary act forces the courts -- and thus eventually the faiths themselves -- to ask why a particular person is being excluded.¹³³ Once a clear understanding of why people are excluded is articulated by each faith, tort law can grant or deny protection to those exclusions whose purpose is consistent with the protected First Amendment values of forming a religious sub-community.¹³⁴

Secondly, the test advocated by this article is superior in application to any of the three tests found in the various court opinions. It is simply more nuanced than either the blanket First Amendment protection granted by Paul¹³⁵ or the generic non-protection advocated by Bear.¹³⁶ Both of these opinions appear to adopt standards that are too easily prone to abuse. Bear creates civil liability for core religious functions, and contains the capabilities of destroying any faith's exclusionary policies. Once one allows a civil action for alienation of affection when a minister advises a spouse to leave a marriage on religious grounds (as Bear does), there is little sacred religious advice that is not actionable in tort.¹³⁷ The potential to destroy religious communities is clear. So too, a broad First Amendment right of the type advanced by Paul allows persecutions of those who leave a faith. This simply cannot be tolerated in a free society. Paul appears to allow, or at least could be read to allow, such practices as "fair game" or "freeloader debt" that can be used to prevent people from exercising their right to leave a religion and not be part of the community.¹³⁸

More significantly, this test is superior to the more nuanced membership test advocated by Guinn.¹³⁹ There are crucial problems with the membership test. Most significantly, Guinn allows people to be disciplined based on their apparent consent, when they join the Church. While this theory might have a certain amount of validity in a highly organized and well disciplined church as was the case in Guinn, this test has little validity once it is removed from that setting and placed into the many faiths where the synagogue or church membership is by no means a commitment to observance. In the context of either Catholicism, mainstream Judaism in any of its denominations, or classical Protestantism, by no means is joining a church or a synagogue any form of an agreement to adhere to the normative rules of the faith. To assert, for example, that mere membership in a church would give the local parish the right to publicize who is using a prohibited method of birth control, or membership in a synagogue would give the rabbi the right to announce who does not keep kosher, misses the fact that these religions do not use membership as a litmus test of full observance. The Oklahoma Supreme Court has taken a very specific rule of the Church of Christ and turned it into a general rule of law when it should not have.¹⁴⁰

Secondly, the consent rule allows active church discipline designed to punish violations to be practiced against people who clearly do not wish to have that done against them. The whole notion of consent, even in a situation where the church uses membership as a litmus test of observance is suspect. Thus, even in Guinn, it is clear from the facts of that case, that the woman did not wish to have information concerning her sexual life publicized to church members.¹⁴¹ Whether she was or was not a member at the time of the publication, it is clear that she did not consent to be disciplined.

So too, Professor Hayden's assertion, in defense of the consent rule, that:

A second related strength of the consent theory in this context derives from the nature of free exercise itself: individuals should be free to practice one religion or another, or none at all. When a person has chosen one organized belief structure, he should be held to it until he chooses to withdraw, and therefore he should not be able to sue his fellow members for disciplining him in accordance with church doctrine and policy. As soon as that person chooses to leave one religion, however, either to join another or to join none at all, the government has an interest in the individual's free exercise of that choice to leave.¹⁴²

is debatable, at the least. Why should the government allow religions that have organized belief structures to punish people who wish to belong to the faith, and yet violate its rules. It makes much more sense to limit the faith's rights to actions which exclude these people and not actions designed to punish them. If one were to carry Professor Hayden's analysis to its logical conclusion, one would permit even physical disciplining of members, and not limit immunity to the tort of "intentional inflection of emotional distress" but to such crimes as assault. Rather it is clear that the consent obtained is not genuine.

The consent doctrine, in short, is at best a narrow doctrine suitable for only select faiths, and at worst a fiction that allows religions to publicize private details of people lives against their will. This problem clearly comes to the fore when one examines the difficulties later cases have had in applying the test developed in Guinn.¹⁴³

The same values that would seem to preclude most damage awards for excommunication and shunning in tort law would prevent judicial review of the merits of excommunication through the guise of resolving a property law disputes. The approach of the Canadian Supreme Court in Lakeside Colony of Hutterian Brethren¹⁴⁴ which allows for judicial review for conformity with natural justice orders of expulsion and exclusion would seem to be unwise, in that it evaluates the "correctness" of what are core theological determinations when these same factors can be avoided and the property law dispute be resolved independent of a merit determination of the correctness of the faith's exclusion. A better rule would be either to adopt the American rule of approach Milivojevich¹⁴⁵ which mandates complete abstention, or the British approach in Chief Rabbi¹⁴⁶ which allows formally for review, but with a completely deferential standard of review.

This article started with a Jewish perspective on shunning and excommunication, and it argues that Jewish law in this area is respectful of both minority and majority rights and gives each the ability to form its own exclusive community. Common law tort law and constitutional law should aim to do the same. The goals of such doctrines and practices should be to allow the formation of self-selected sub-communities sharing common religious values, which are protected in their right to exclude, but prevented from harassing in the name of religion. The law must reflect both of these goals, and it currently does not.