Footnotes

* Assistant Professor, Department of Religion, Adjunct Professor and Fellow in the Law and Religion Program, Emory University School of Law. J.D., New York University School of Law; Advanced Ordination, Yeshiva University; Law Clerk, Judge Leonard I. Garth, United States Court of Appeals, Third Circuit.

1 For a review of the recent literature on this issue see, Lawrence M. Friedman, The Law and Society Movement, Stanford Law Review 38:763 (1986).

2 For a detailed discussion of the impact religion has had on the formation of society, see Jerold S. Auerbach, Justice Without Law?, (Oxford University Press, 1983). The thesis of Auerbach's book -- that many religious systems can create justice without any formal system of law -- is quite debateable, and beyond the scope of this paper. It is clear that Jewish law is not such a system, although, as Auerbach notes, it is a system of justice without lawyers, which is not the same as a system of justice without law. Justice without law and justice without lawyers are by no means identical, although to those involved in the common law model of justice it might appear that they are the same. The Jewish legal system certainly had all of the apparent indicia of a legal system (unlike the Amish, who, Auerbach maintains, lack a legal system) although the Jewish tradition had no lawyers as part of its legal system. For more on this issue see, my forthcoming work The Jewish Perspective on Practicing Law (Yeshiva University, 1995). The confusion that results from comparing a system of law without lawyers (such as Jewish law), with a system of justice without law (such as Amish society) can sometimes be found in Auerbach's book.

3 Jewish law (called halacha in Hebrew) is the term used to denote the entire subject matter of Jewish law, including public, private, and ritual law. A brief history of Jewish law is provided by Prof. Suzanne Last Stone in her recent article, "In Pursuit of the Counter-text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory," Harvard Law Review 106:813, n.13 (1992). She states:

Jewish law consists of the written law and the oral law; both, according to Jewish legal theory, were given to Moses on Mt. Sinai. The five books of Moses are often referred to as the Torah. The term Torah also may refer to the entire contents of the Hebrew Bible, including the five books of Moses, the prophets, and the writings. Finally, Torah (literally, teaching) often refers to the entire content of the divine revelation and, by extension, to all the teachings of the Jewish legal tradition.

In about 200 C.E., Rabbi Judah Ha-Nasi edited a written compilation of the oral law, the Mishnah. The scholars of the Mishnaic era (c. 70 C.E. to 220 C.E.) were known as tannaim. The term tannaitic refers to the period of the Mishnah.

The next three centuries (c. 200 C.E. to 500 C.E.) were dominated by scholars called amoraim (interpreters), who debated and reconciled the rulings of the tannaim. The records of this commentary comprise the Gemarah. Together, the Mishnah and Gemarah comprise the Talmud. Two versions of the Talmud exist. The first, edited in the Palestinian academies, is referred to as the Jerusalem or Palestinian Talmud. The second and more comprehensive version, the Babylonian Talmud, was completed at the academies of Babylonia.

The other significant material produced in this rabbinic period is midrash. Midrash is the interpretive study of the Bible and consists primarily of rabbinic exegesis tied to scriptural verses. Midrash is further subdivided into midrashei halakhah and midrashei aggadah. The midrashei halakhah are legal exegeses of biblical passages. The midrashei aggadah are traditionally defined as everything in tannaitic and amoraic literature that is not halakhah (Jewish law), including interpretations of biblical narratives, parables, legends, homilies, and allegories.

The post-talmudic history of Jewish legal scholarship is divided into three eras: the Geonic era (c. 590 C.E. to 1038 C.E.); the era of the Rishonim (early scholars - c. 1038 C.E. to 1550 C.E.); and, finally, the era of the Aharonim (later scholars - from 1550 to the present). Rabbi Joseph Caro's sixteenth-century Shulhan 'Arukh is considered the authoritative code of Jewish law and sometimes serves as the dividing line between the Rishonim and the Aharonim.

4 Classically, this is known as shunning and excommunication. The term "excommunication" has its origins in the exclusion of a person from the Christian right of communion, and thus, the term is not itself of Jewish origins; See "Excommunication," Encyclopedia of Religion 5, Mircea Eliade ed.(1987): 218. Notwithstanding its origins, it has become the accepted term to use to refer to this status; for a discussion of the origins of the uniquely Hebrew terms, see note

The adoption of legal phrases with origins antithetical to a particular religious practice of rabbinic Judaism, and then there subsequent incorporation into the literature or rabbinic Judaism has precedent; see e.g. A. Kirschenbaum, The Good Samaritan: Monetary Aspects," Journal of Halacha & Contemporary Society 17:83 (1989): 84-87.

5 In Hebrew, "cherem" Biblically, the word cherem means to destroy; see Ex. 22:19 and Deut. 13:16. However, in modern and rabbinic Hebrew it means to excommunicate; see Rabbi Jacob Karo, Shulchan Aruch, Yoreh Deah 334:1. This isolation is sometimes also expressed as through the term nidui or shamta. The precise linguistic differences between these various terms is beyond the scope of this paper. For more on this, see "Cherem" Encyclopedia Talmudit (Jerusalem, 1976) 16:326.

6 This paper will also compare the practices of the Jewish tradition with that of other faiths in the area of excluding people from the community.

7 Stoning, burning, slaying and strangling; see Deuteronomy 17:17; Leviticus 10:2; and Deuteronomy 13:16.

8 See Maimonides, Sanhedren 14:1 and 15:3 who lists the 36 different offenses for which there is a death penalty.

9 See for example, Maimonides, Sanhedren 16:1, 18:1-2 listing 207 different violations for which lashes are mandated. The codifiers after Maimonides declined to cite these punishments in their codes precisely because they felt them to be inapplicable in modern times. Thus, no listing of death penalty or lashing cases is even found in the classical code of Jewish law, the Shulchan Aruch.

10 Maimonides, Sanhedren 18:1-3.

11 See Rabbi Chezkeya Demedina, Sedai Chemed 4:287-288 for more on this issue. As a matter of legal theory, Jewish courts might still be entitled to use this punishment; see Menachem Elon, Principles of Jewish Law, (Jerusalem, 1974) 534-35. However, it is clear that Jewish courts do not ever order this punishment in modern times, and it is thus considered a punishment no longer applicable.

12 Sanhedren 81b. This penalty is also inapplicable in modern times.

13 Formal jurisdiction ended forty years prior to the destruction of the Second temple; Sanhedren 41a. While perhaps some sort of criminal jurisdiction might have been granted to the Jewish community in Spain in the 1300's and in various other times in Jewish history by the civil government, even that jurisdiction was not directly based on Jewish law and involved punishments unheard of in Jewish law. For a further discussion of this issue, see Elon, Principles of Jewish Law (Jerusalem 1974): 529.

14 Perhaps there is also some emergency jurisdiction, although this author is inclined to view this form of jurisdiction in post talmudic times as a broad manifestation of the pursuer rationale; for more on this, see H. Ben-Menahem, Judicial Deviation in Talmudic Law, (Boston University, 1991). Essentially complete civil jurisdiction is still part of Jewish law, and is beyond the scope of this paper.

15 By force if need be, and even if that use of force violates the rules of the host country.

16 Thus, for example, if one saw "A" going to murder "B" in Atlanta, Georgia on October 7, 1994, Jewish law would allow one to kill "A" to stop the murder if that is the only way to prevent the crime. In fact, the scope of the pursuer rationale is quite a bit broader than that case, and it perhaps provides the governing jurisdictional grant (and perhaps the substantive laws) for such areas of abortion, spousal abuse, armed robbery and other violent crimes; for more on this, see Shulchan Aruch, Choshen Mishpat 425:1-3.

17 For more on this area, see "Self-Defense and Defense of Others in Jewish Law: The Rodef Defense," Wayne State Law Review, 33:1257 (1987).

18 See for example, People v. Drelich, 506 N.Y.S.2d 746 124, A.D.2d 441 (2d App. Div. 1986). In this case, Mr. Drelich appealed his murder conviction on the grounds that his confession of the "brutal stabbing murder of his 23-year-old pregnant wife" to his communal rabbi, Rabbi Moshe Tendler, ought not to have been admitted at trial. Rabbi Tendler testified against the defendant and recounted the confession, which resulted in his conviction. The court determined that no rabbi-penitent privilege attached as "the defendant's communications to Rabbi Tendler were made for the secular purpose of seeking assistance in the retention of counsel, and in negotiating with the prosecutor's office and securing other assistance in connection with the preparation of his defense to the charges." Rabbi Tendler has remarked many times that his action in bringing this issue to the attention of the secular authorities, and his testimony at trial, were compelled by Jewish law.

19 Actually one other significant power is present, which is the religious authority to exclude people from the privileges Jewish law mandates that one adherent extend to another. For example, in a society where the secular law does not mandate that one return lost property to its rightful owner, Jewish law directs that one nonetheless return such property to a fellow Jew who observes Jewish law. This type of privilege also can be used to create communities and exclude individuals. This author has argued elsewhere that these privileges are in fact quite similar in purpose -- to create a community committed to a similar level of observance -- to excommunication, but are used on a much higher level; see Michael J. Broyde and Michael Hecht, "The Gentile and Returning Lost Property According to Jewish Law: A Theory of Reciprocity" forthcoming, Jewish Law Annual. Thus, as will be shown later in this paper, excommunication and shunning were used only to prevent public defiance of community norms, whereas these remaining reciprocal privileges were used to distinguish personal observance. This is a quite difficult topic, and the conclusion found in that paper could be contested.

20 For more on this topic, see Irwin H. Haut, Divorce in Jewish Law and Life, (Targum 1983):18 and Irving Breitowitz, The Plight of the Agunah: A Study in Halacha, Contract, and the First Amendment, Maryland Law Review 51:312 (1992).

21 For a discussion of the appellate process in Jewish law, see Eliav Shochetman, Civil Procedure in Jewish Law (Jewish Law Institute, 1994): 443-71.

22 In Jewish divorce law, a court has three choices. It can compel the issuing of a divorce (and in such a situation, Jewish law would allow court ordered compulsion to force a bill of divorce to be written). However, the grounds for such an order are few and far between, and essentially limited to adultery or serious marital misconduct. Alternatively, it can rule that one is "religiously obliged" to participate in a divorce. In such a situation, judicial force cannot be used. The grounds for such an order are numerous, and that was the order in this case. Finally, it can rule that a divorce is not mandated by Jewish law, and should only be given with the full and complete consent of both parties; See generally, Shulchan Aruch Even Haezer 154.

23 Jewish courts, unlike common law courts, not only decide cases, but give moral advice based on the teachings of Jewish law and ethics; for more on this, see Menachem Elon, Jewish Law: History Sources, Principles IV (Jewish Publication Society 1994): 1863-71.

24 Like many opinions of the Supreme Rabbinical Court, this case was initially published as part of the Responsa literature of its judges, see Rabbi Obadiah Yosef, Yabi'a Omer, VII:23 (Even HaEzer) and Rabbi Eliezer Waldenberg, Tzitz Eliezer, 17:53.

25 Note how the court states:

We did, however, try to persuade the man, who is religiously observant, that he follow the proper path and to obey the decision of the court, for it is a mitzvah to heed the words of the Sages who obliged him to divorce his wife . . . (emphasis added)

26 696 F.Supp. 838, (E.D.N.Y 1988).

27 The affidavit submitted described the consequences of this excommunication as follows:

plaintiff may be totally excluded from the community, he will not be able to shop at the stores of members of the community, his zizzitt, a fringed garment worn by observant Jews, may be cut off, the mezuzah, religious verses in a container, may be removed from his door, and there will be no religious prohibition on injury to his property or, indeed, his murder.

Movant's affidavit is clearly incorrect as a matter of Jewish law. As noted by the Court, it mixes the legal sanctions for excommunication with that of informing, a far more serious violation of Jewish law and ethics. As noted infra at page 1, the Jewish tradition simply excluded people when excommunication was ordered. No other penalty should be imposed.

28 Even a brief review of the literature indicates that such practices are common to many faiths; see for example, "Excommunication", supra note ., which discusses briefly the practices of many different faiths and text accompanying note ., note ., and note ..

29 Babylonian Talmud Mo'ed Katan 14b-17b.

30 Perhaps one could suggest that as other remedies were abolished in response to societal concerns, the uses of exclusion to form a community increased. Thus, it is quite reasonable that Rabbi Asher ben Yecheil (Spain, 1300's) can essentially abandon the use of exclusion as a punishment (see Responsa of Asher 43:9) as the Jewish community in Spain at that time had criminal jurisdiction over the Jewish community, including the statutory authority to execute; Responsa of Asher 17:1; Responsa of Yehuda ben Asher 75.

31 See generally, Elon, "Penal Law," Principles of Jewish Law, (Jerusalem, 1974): 469-475.

32 At first glance this might seem like a peculiar question. After all, is not the goal of excommunication to remove the person from the community? It is clear that in talmudic times that was not the goal. For example, the great Sage Rabbi Eliezer was excommunicated by the talmudic sages for defiance of the majority on a particular issue. Notwithstanding his excommunication, he remained one of the premiere talmudic scholars of his time, to whom other scholars went to hear lecture -- all the while making sure that they stayed more than four cubits away from him, as required by Jewish law. He was excommunicated to indicate that his view on a particular topic was wrong, and his defiance was unacceptable. However, he clearly remained in the faith-group of rabbinic Judaism. For more on this, see Bava Metzia 59a-b.

33 Elon, Principles of Jewish Law, 543.

34 Jacob ben Asher, Tur Yoreh Deah 334.

35 See Rabbi Jacob Moellin, Minhagai Maharil, 34.

36 Haim Cohen, writing in Elon, Principles of Jewish Law, 544. It is worth noting that (notwithstanding their ineffectiveness) the British Mandate law governing Palestine appeared to outlaw these pronouncements as a form of criminal conspiracy; see Criminal Ordinances of Palestine §36.

This author is inclined to disagree with Cohen's thesis as to the cause of the current penalties ineffectiveness. While Cohen appears to maintain that the penalty became ineffective because of overuse by the "extreme Orthodox," this author is inclined to maintain that the penalty became ineffective due to the emancipation and the general change in social status of the Jewish community. Once one can legally move out of the Jewish district/ghetto and avoid the community's sanction, excommunication becomes a much weaker penalty.

37 The basic difference between shunning when there is no option to leave and shunning when there is, is well demonstrated in recent times by Utah's history. There were numerous attempts to exclude non-Mormons from the economic development of Utah from 1855 to 1870. The Utah Supreme Court recently summarized one such incident as follows:

Economics, in particular, became a crucial issue following the organization of Zion's Cooperative Mercantile Institution ("ZCMI"). ZCMI was designed to be "the sole merchandising facility for members of the Mormon Church wherever their number was large enough to justify a branch." Mormon merchants could either join ZCMI or leave the territory and the Mormon Church. As Brigham Young said regarding those Mormons who did not join the cooperative, "[W]e shall leave them out in the cold, the same as the gentiles [non-Mormons], and their goods shall rot upon their shelves." To the non-Mormon merchants, the cooperative was a threat to their very existence. As feared, ZCMI was a success from the outset with its opening followed by a sharp decline in the sales for non-Mormon and noncooperating Mormon merchants. In response, non-Mormons and excommunicated Mormons known as the "Godbeites" formed a temporary alliance resulting in the establishment of the Liberal Party in 1870.

Society of Separationists, Inc v. Whitehead, 870 P.2d 916, 925 (Utah, 1993) (citations and footnotes omitted, emphasis added).Once those who were excommunicated organized themselves to form an independent economic unit that was self-sufficient, the threat of excommunication became much less powerful. Id.

38 Yoreh Deah 334:1. For a discussion of Shulchan Aruch, and its role in Jewish law, see note ..

39 See comments of Rabbi Shabtai ben Meir Hacohen, Nekudat Hakesef, 334:1; Rabbi Yair Bachrach, Responsa Chavat Yair, 141; Rabbi Yakov Emden, Responsa Yavetz, 1:79; Rabbi Avraham Yitzchak Kook, Da'at Cohen, Yoreh Deah 194; Rabbi Moses Feinstein, Iggrot Moshe Yoreh Deah, 1:53, OC 2:33; Rabbi Yizchak Isaac Herzog, Hechal Yitzchak OC, 30(3) and Pitchai Teshuva commenting on Yoreh Deah, 334(1).

40 These dual goals of shunning and excommunication are found in religions other than Judaism. For example, a recent court case discussed the process of withdrawal of fellowship from the Church of Christ. It noted:

41 Withdrawal of fellowship is a disciplinary procedure that is carried out by the entire membership in a Church of Christ congregation. When one member has violated the church's code of ethics and refuses to repent, the elders read aloud to the congregation those scriptures which were violated. The congregation then withdraws its fellowship from the wayward member by refusing to acknowledge that person's presence. According to the Elders, this process serves a dual purpose: it causes the transgressor to feel lonely and thus to desire repentance and a return to fellowship with the other members; and secondly, it ensures that the church and its remaining members continue to be pure and free from sin.

Guinn v. The Church of Christ of Collinsville, 775 P.2d 766 n.2 (Okl. 1989) (emphasis added).

42 See section IV.

43 A note on the titles of books in the Jewish legal tradition is needed. Unlike the common literary tradition in the West, where titles to books reflect the topics of the work, the tradition in Jewish legal writings is that titles of books either reflect names of the authors' worked into literary phrases or semi-humorous titles with puns about the work one is commenting on. A few examples demonstrates this well. Rabbi Shabtai ben Meir HaCohen's commentary on the Shulchan Aruch is entitled Seftai Cohen "the words of the Cohen," (a literary embellishment of the word shabtai, the author's name) to commemorate the author. Rabbi Moses Feinstein's collection of responsa are called Iggrot Moshe, "Letters from Moses". Both of these book titles commemorate author's names. The other type of book title involves a pun or reworking of a book one is commenting on. For example, Rabbi Jacob ben Asher wrote a classical treatise on Jewish law called "The Four Pillars" (Arba Turim). A major commentary on the work that to a great extent supersedes the work itself, is called "the House of Joseph," (Beit Yosef) since it was written by Rabbi Joseph Karo, and once his commentary (house) was completed, one could hardly see "The Four Pillars" it was built on. A reply commentary by Rabbi Joel Sirkes, designed to defend the work "The Four Pillars" is called "The New House," (Beit Chadash) because once it was finished, the "House of Joseph" would be less used. When Rabbi Karo wrote his own treatise on Jewish law, he called it "The Set Table" (Shulchan Aruch) which was based on (i.e. located in) "The House of Joseph". Rabbi Isserless' glosses on "The Set Table," which really was intended vastly expand "The Set Table," is called "The Table Cloth," because no matter how nice the table is, once the table cloth is on it, one hardly notices the table. Rabbi David Halevi's commentary on the Shulchan Aruch was named the "golden pillars" (Turai Zahav) denoting an embellishment on the "legs" of the "set table." This type of humorous interaction continues to this day in terms of titles of commentaries on the classical Jewish law work, the Shulchan Aruch. Additionally, there are book titles that are mixed literary puns, and biblical verses. For example, Rabbi Shabtai ben Meir HaCohen wrote a very critical critique on the above mentioned Turai Zahav ("golden pillars"), which he entitled nekudat hakesef, "spots of silver", which is a veiled misquote of the verse in Song of Songs 1:11 which states "we will add bands of gold to your spots of silver" (turai zahav ol nekudat hakesef, with the word turia "misspelled.") (Note that it is the silver that appears majestic when placed against an all gold background.)

44 Commenting on Yoreh Deah, 334:1.

45 Indeed, this is quite clearly stated in Shulchan Aruch Yoreh Deah 334:1. See also section III of this paper.

46 See sources cited in note .. Indeed, this remark is part of a broader posture of modern Jewish law that the punishment of criminals for any reason other deterrence of future crime is no longer within the jurisdiction of Jewish law. Just like the pursuer rationale permits only the use of force to prevent crime, and not to punish it, so too, the essential goal of the shunning process is to deter future violations (either by this person or others). It is not to punish.

47 For more on this, see infra, at section IV.

48 See Shulchan Aruch, 334:12 and commentaries ad locum; see also comments of Nekudat HaKessef on Taz Yoreh Deah, 334(1).

49 For a discussion of levels of observance in the Jewish community, see Harold Dellapergola and Uziel Schmelz, "Demography and Jewish Education in the Diaspora", in H. Himmelfarb & S. DellaPergola, eds., Jewish Education Worldwide: Cross Cultural Perspectives, (University of America Press, 1989): 43, 55.

50 Thus, for example, the three court cases discussed in this paper that address legal aspects of excommunication within the Jewish tradition all are clearly concerned with insiders who are flouting the will of the community, and yet wish to remain part of that community.

51 Paul v. Watchtower Bible and Tract Society of New York, Inc., 819 F.2d 875, 876-877 (9th Cir, 1987). In fact, the status of disassociated persons has changed within the ecclesiastical law governing Jehovah's Witnesses. Initially, such people were viewed as non-members. However, in 1981 the church effectively changed the status of such people from identical to "non-members" to identical to disfellowed members. id.

Other faiths have similar rules. Amish society has clear rules of shunning called meidung.

Meidung requires that members receive no favors from the excommunicated person, that they do not buy from or sell to an excommunicated person, that no member shall eat at the same table with an excommunicated person, and if the case involves husband or wife, they are to suspend their usual marital relations.

J. Hostetler, Amish Society, (1963): 63.

See also Quiner v. Quiner, 59 Cal. Rptr. 503, (Ct. App. 1967) (exclusion as practiced by the Plymouth Brethren); In re Marriage of Hadeen, 619 P.2d 374 (1980) (exclusion as practiced by the First Community Church).

52 Within the Jewish tradition, one who was never part of the community almost inevitably has the status of a "child who was kidnapped" from the faith, and is thus excused from any penalty for his violation based on his complete lack of familiarity with the faith. The Jewish tradition directs that one must befriend such a person to bring them closer to the faith; certainly such people cannot be shunned. For more on this see Maimonides, Mamrim, 3:3 and Rabbi Abraham Isaiah Karletz, Chazon Ish Yoreh Deah, 1(6), 2(160) and 2(28).

Such is, by no means, the posture of all faiths. In modern Cannon law there are a number of violations that result in immediate excommunication from the Church independent of the seriousness, the public nature of the offence or the status of the sinner. Included in that category is performing or allowing to have performed on oneself an abortion; see "Excommunication," supra note .. In such a system the role of excommunication is clearly different. For more on this, see section IV.

53 This is hinted at in Robert Bear's recounting of his exclusion from the Reformed Mennonite Church. He states "Because I have been excommunicated I am considered to be more sinful than if I had never known 'the truth'." Robert Bear, Delivered Unto Satan, (Philadelphia, 1974): 10.

54 Deuteronomy 24:16.

55 Yoreh Deah, 334:6, quoting from a responsa of Rav Palti Gaon (9th century).

56 It is important to realize that Rabbi Isserless in not discussing the exclusion of the relative who assists in the disruption. Rather he permits the exclusion from the community of people who, if allowed to remain, will cause disruption through their mere presence.

57 Until children reach adulthood, the primary obligation to circumcise is limited to the father; see Shulchan Aruch Yoreh Deah 360:1.

58 Actually, he is quoting from the works of the Rabbi Shlomo Luria, Yam Shel Shlomo, a major scholar of Jewish law who lived two generations prior to Rabbi Halevi.

59 See text accompanying note ..

60 Rabbi Hershel Schachter, Synagogue Membership and School Admission, Journal of Halacha and Contemporary Society 12:50, (1986): 64 (emphasis added).

61 See Schachter, supra note ..

62 This raises the issue of recognized diversity within a particular religious faith. Within Judaism there are certain well established differences of practice, custom and law that are based on the historical separation and isolation of certain geographical groups. Thus, for example there are eastern European Jews, commonly called Ashkenazim and oriental Jews, commonly called Sefardim; these two groups have their own customs, and frequently laws, that govern many matters in their society. There is quite a literature discussing the establishment of practices within the community when the "community" is made up of members with different customs, traditions and laws.

In a nutshell, Jewish law recognizes not only the right of a community to exclude people from the sub-society who are in deviation from the basic tenets of the community in violation of Jewish law, but also to compel members of a different recognized Jewish community to adhere to the norms of the majoritarian Jewish practice in the community where they reside. Thus, for example, a Jew of Eastern European descent who would normally follow the rites and laws of the Ashkenazic Jewish community must publicly follows the strictures of the Oriental (Sefardic) community were he to reside in such a community. Of course, Jewish law would recognize the right of this person to form his own community following the ashkenazic rite when a mass of such people were present. However, the Jewish tradition clearly grants to the majority community the right to insist that all of the participants in its community adhere to the same public rites on significant issues -- or leave the community to form its own religiously separate community (which is perfectly proper). It matters not at all whether the deviation from communal norm is one that is "historically legitimate" or not. For a recent Hebrew work on the issue of interactions between various communities in Israel, see Tal Doar, Tal Amarti, (Publisher?, 1992): 1-26.

63 This article will not discuss the technical due process procedural issues involved in issuing a decree of excommunication according to Jewish law. Suffice it to say that many safeguards are in place; see "Cherem", Encyclopedia Talmudic, supra note ..

64 Shulchan Aruch Yoreh Deah, 234:1.

65 See comments of Rabbi Shabtai ben Meir Hacohen, "Seftai Cohen", Yoreh Deah, 334:2.

66 Shulchan Aruch Yoreh Deah 334:38 and see comments of Rabbi David Halevi (Taz) at n.18. The classical example of that is the case of a person who is aware that it is wrong to use God's name in vain, generally abstains from so doing, but occasionally in moments of frustration does so. Such a person cannot be excluded.

67 Professor Jessica Litman of Wayne State University School of Law questioned whether the principles of this paper are genuinely applicable to a case of exclusion when the exclusion is ordered by a Jewish court for an economic violation, such as violating a non-competition agreement. I initially responded that the rules of this paper where not applicable, but upon reflection I realize that my initial response is incorrect. A Jewish court would not order exclusion as an economic remedy for such a violation -- indeed, it cannot; see Shulchan Aruch CM 13. It would only order exclusion if the one who lost the case defied the court and declined to implement the economic remedy ordered by the Jewish court. In that case, exclusion might be ordered; it, however, is not an economic remedy, but rather a form of contempt of court, whose punishment bears no relationship to the underlining issues in the case. With that relaxation in mind, exclusion remains the proper remedy for defiance of judicial process.

68 Yoreh Deah 334:43.

69 See note . for a discussion of Mormon practice and note . for a discussion of Church of Christ practice.

70 As of September 1, 1994, on Westlaw.

71 Ventimiglia v. Sycamore View Church of Christ, 1988 WL 119288, (Tenn. Ct. App., 1988) (excommunication resulting from adultery); Guinn v. Church of Christ of Collinsville, 775 P.2d 766 (Ok. 1989) (excommunication based on fornication); Hadnot v. Shaw, 826 P.2d 978 (Okla., 1992) (excommunication based on fornication); Synder v. Evangelical Orthodox Church, 264 Cal. Rptr. 640, 216 Cal. App. 3d 297 (CA Ct. App. 1989) (excommunication based on adultery).

72 Hester v. Barnett, 723 S.W.2d 544 (Miss. Ct. App. 1987) (Alienation of affections suit resulting from excommunication ordered by pastor); O'Neil v. Schuckardt, 733 P.2d 693 (Idaho, 1986) (Alienation of affections suit resulting from excommunication ordered by denomination); Radecki v. Schuckardt, 361 N.E. 543 (Oh. Ct. App. 1976) (same); Carrieri v. Bush, 419 P.2d 132 (Wash. 1966) (Alienation of affections suit resulting from excommunication ordered by church).

73 Molko v. Holy Spirit Association for the Unification of World Christianity 252 Cal.Rptr 122 46 Cal. 3d 1092, 762 P.2d 46 (Cal., 1988) (allegation of financial fraud as the cause of an excommunication); Bear v. Reformed Mennonite Church, 462 Pa. 330, 341 A.2d 105 (Pa., 1975) (financial ruin resulting from allegation of fraud leading to excommunication); Lide v. Whittington, 573 S.W.2d 614 (Tex. Ct. App., 1978) (excommunication resulting from an allegation of business misconduct and slander).

74 Lozanoski v. Sarafin, 485 N.E.2d 669 (Ind. App. 1985) (excommunication resulting from church financial dispute); Macedonia Baptist Foundation v. Singleton, 379 So.2d 269 (La. App., 1979) (Excommunication resulting from inter-church dispute about fund-raising matters); Davis v. Church of Jesus Christ of Latter Day Saints, 258 Mont. 286, 852 P.2d 640 (Mont., 1993) (allegation of fraud and breach of fiduciary duty leading to excommunication resulting from medical injury in a church building); St. John's Greek Catholic Hungarian Russian Orthodox Church of Rahway v. Fedak, 96 N.J.Super. 556, 233 A.2d 663 (N.J.Super. A.D., 1967) (excommunication resulting from property dispute in church).

75 Bowen v. Green, 275 S.C. 431, 272 S.E.2d 433 (S.C., 1980) (Excommunication resulting from attempt to fire pastor); Bentley v. Shanks, 48 Tenn.App. 512, 348 S.W.2d 900 (Tenn. App., 1960) (excommunication resulting from firing of pastor).

76 Paul v. Watchtower Bible and Tract Soc. of New York, Inc., 819 F.2d 875 (9th Cir. 1987, (excommunication resulting from disfellowship of parents).

77 Grunwald v. Bornfreund, 696 F. Supp 838 (E.D.N.Y. 1988).

78 Grunwald at 696 F. Supp 839.

79 In re Fuhrer, 419 N.Y.S. 426 (1979).

80 Guinn, 775 P.2d at 768-69.

81 Thomas J. Green, "Future of Penal Law in the Church," The Jurist, 35 (1975): 212-275. See generally, The National Conference of Catholic Bishops, Resolution of National Conference of Catholic Bishops (1989) and Ari L. Goldman, "O'Connor Warns Politicians Risk Excommunication Over Abortion", N.Y. Times (June 15, 1990): A1, B2 ("Catholics in public office must also have this commitment to serve the state; but service to God must always come first.").

82 See note . for a discussion of diversity within the Jewish tradition.

83 Paul, 819 F.2d at 877. There are a few examples of excommunications having unquestioned secular law consequences. One such case is Borntrager v. Commissioner, 58 T.C.M. (CCH) 1242 (1990) which involved the rights of an excommunicated member of the Old Order Amish to keep his religious exemption from Social Security benefits, taxes or even having a Social Security number. The court ruled that the statutory exemption of the Amish was at least in part based on the Amish community's self-sufficiency in caring for its members and since Borntrager was not a member in good standing in the Amish community any longer, and would not be assisted by the Amish communal welfare system should he need it, he is not entitled to social security exemption.

84 For a Jewish law discussion of the issues raised by a governmental ban on excommunication, see Rabbi Yecheil Michael Epstein, Aruch HaShulchan Yoreh Deah 334 in the preface and in section 42. In this author's opinion, the material in the preface is not an authentic representation of the position of Jewish law, but was placed there for the purpose of permitting the publication of the work in response to censorship by the Czarist government. An examination of the Aruch HaShulchan on Choshen Mishpat indicates that this was his method of speaking exclusively to the censor. His actually explanation for the legal basis for not using the power to exclude when prohibited by the secular government from using it, is found in Yoreh Deah 334:42, buried among other issues in a way that the censor, most likely not completely familiar with Hebrew, would not find.

85 See note . for the text of the Restatement (Second) of Torts on the intentional inflection of emotional distress.

86 Such as alienation of affection or interference with a contractual relationship.

87 See Hart v. Cult Awareness Network, 13 Cal. App. 4th 777, 16 Cal. Rptr.2d 705, (CA Ct App. 1993) which discusses the doctrine of "fair game" in some detail.

88 Brackets are in the original opinion.

89 Wollershein v. Church of Scientology, 212 Cal. App. 3rd; 260 Cal. Rptr. 331 (1989).

90 Paul v. Watchtower Bible and Tract Society of New York, Inc., 819 F.2d 875, 877 (9th Cir, 1987).

The court went on to describe how such a person would be treated:

[A shunned person] visited her parents, who at that time lived in Soap Lake, Washington. There, she approached a Witness who had been a close childhood friend and was told by this person: "I can't speak to you. You are disfellowshiped." Similarly, in August 1984, [defendant] returned to the area of her former congregation. She tried to call on some of her friends. These people told Paul that she was to be treated as if she had been disfellowshiped and that they could not speak with her. At one point, she attempted to attend a Tupperware party at the home of a Witness. [Defendant] was informed by the Church members present that the Elders had instructed them not to speak with her.

91 Shulchan Aruch Yoreh Deah 334:2-11. Exclusion in the Cannon Law tradition contains within it a number of different levels of varying severity, none of which permit violence against the person. See Green, supra note ..

92 It is vitally important to clearly separate the various types of cases. As noted by Professor Hayden in his fine article "Religiously Motivated Outrageous Conduct: 'Intentional Infliction of Emotional Distress' as a Weapon against Other People's Faiths'," William & Mary Law Review, 34 (1993): 579, the cases really break down into three different categories, only one of which is relevant to this paper. The first category is indoctrination cases, where a Church uses fraud or other unsavory methods to entice a person to join the movement or give it money. The problems posed in such cases is quite different from his second category, church discipline, which this paper focuses on. Both of these categories are even more distant from his third category, which is torts related to religious counseling. Each of these categories of cases creates its own tort law problems and would appear to call for their own separate solution.

93 See Guinn v. Church of Christ, 775 P.2d 766, 767-69 (Okla. 1989).

94 See Comment, "Religious Torts: Applying the Consent Doctrine as Definitional Balancing," University of California at Davis Law Review 19:949 (1986): 975-83 (1986) for a list of such cases. The earliest of the American cases defends this theory by stating:

[t]hey joined the church, with a knowledge of its defined powers, and as the civil power cannot interfere in matters of conscience, faith or discipline, they must submit to rebuke or excommunication, however unjust, by their adopted spiritual rulers.

Gartin v. Penick, 68 Ky. (5 Bush) 110, 120 (Ct. App. 1869) (Robertson, J.), quoted in Chase v. Cheney, 58 Ill. 509, 539 (1871).

95 Thus, in Guinn, the court held actionable the fact that:

Parishioner was publicly branded a fornicator when the scriptures she had violated were recited to the Collinsville Church of Christ congregation on October 4. As part of the disciplinary process the same information about Parishioner's transgressions was sent to four other area Church of Christ congregations to be read aloud during services.

Guinn, at 768.

96 For additional criticism of this rule, see text accompanying notes . to .. (For example, imagine, if after Richard Nixon's resignation as President it became a tort to recount the moral lesson of his activity and mention his name in connection with that impropriety, since "he had already resigned.")

One could reply that this criticism is itself deficient, as it grants rights of some sort to the tort-feasor at the expense of the victim. While that is doctrinally uncommon in tort law, such a "right" is needed to reflect the governmental interests in freedom of religion.

97 Religiously Motivated Conduct, supra note ., at 642-43

98 Paul v. Watchtower Bible & Tract. Society, 819 F.2d 875 (9th Cir. 1987) and Burgess v. Rock Creek Baptist Church 734 F. Supp. 30 (D.D.C. 1990).

99 The court here discusses the constitutional law of the State of Washington, as this case was heard though diversity jurisdiction.

100 Paul, id. at 876.

101 See infra page 1 for further development of these ideas.

102 494 U.S. 872 (1990).

103 Indeed, the United States Supreme Court's ruling in Employment Division v. Smith, 494 U.S. 872, 879 (1990), which states that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability,'" undercuts the whole validity of Paul, which compels a religiously motivated exception to a tort law doctrine. Indeed, this is clearly noted by Douglas Laycock, The Remnants of Free Exercise, Supreme Court Review (1990:1): 45-46. However, the application of these principles to cases that call for the application of general tort law rules is quite unclear. Indeed, a claim could be made that Smith has overruled any dicta to the contrary which implies a heightened governmental deference to religious claims in the face of a neutral state law, such as its tort law. Of course, if tort law doctrines were specifically modified to prohibit a particular religious activity, that would lead to a much stronger First Amendment challenge; see Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S.Ct. 2217 (1993).

104 Paul at 883.

105 For an example of this, see page 1.

106 Religiously Motivated Conduct, supra note ., at 653

107 Bear v. Reformed Mennonite Church, 341 A.2d 105 (Penn., 1975).

108 The court earlier had described the practice as:

[T]he church and bishops, as part of the excommunication, ordered that all members of the church must 'shun' appellant in all business and social matters. ('Shunning,' as practiced by the church, involves total boycotting of appellant by other members of the church, including his wife and children, under pain that they themselves be excommunicated and shunned.)

Id.

109 Van Schaick v. Church of Scientology, 535 F.Supp. 1125 (D.Mass., 1982). This can also be implied from Christofferson v. Church of Scientology, 644 P.2d 577 (Or. Ct. App.), petition denied, 650 P.2d 928 (Or., 1982) which held, as a matter of fact in the particular case at bar, that there was no liability, but implied that liability was possible, as a matter of law. This lack of protection can also be derived from a long line of cases that deny any First Amendment immunity to recruitment practices of faiths; see Murphy v. I.S.K.Con. of New England, Inc., 571 N.E.2d 340 (Mass. 1991); McNair v. Worldwide Church of God, 242 Cal. Rptr. 823 (Ct. App., 1987) and Molko v. Holy Spirit Ass'n, 762 P.2d 46 (Cal., 1988).

110 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976). (emphasis added). While American courts will hear the fiscal aspect of these cases, it will not (and can not) review, in any form, the ecclesiastical determinations.

111 97 D.L.R. 4th 17; 36 A.C.W.S. (3d) 512 (1992). This case in an appeal from the judgment of the Manitoba Court of Appeal, 77 D.L.R. (4th) 202, 70 Man. R. (2d) 191, 25 A.C.W.S. (3d) 2, dismissing an appeal from a judgment of Ferg J., 63 D.L.R. (4th) 473, 62 Man. R. (2d) 194, 18 A.C.W.S. (3d) 117, declaring that the defendants were no longer members of a Hutterian community and that there excommunication was valid.

112 The legality of that contractual arrangement had been affirmed in Hofer v. Hofer, 13 D.L.R. (3d) 1 (1970). The dissent in this case, at page 64, indicates that this precedent is ripe for "revisit."

113 Id at 36. The bracketed numbers are by MJB.

114 Id. at 58.

115 Indeed, the failures of this three part test of natural justice is recognized in the Canadian Supreme Courts own discussion of the third prong of the test, the requirement of an unbiased tribunal. The Court stated:

There is no doubt that an unbiased tribunal is one of the central requirements of natural justice. However, given the close relationship amongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previous contact with the issue in question and, given the structure of a voluntary association, it is almost inevitable that the decision-makers will have at least an indirect interest in the question. Furthermore, the procedures set out in the rules of the association may often require that certain persons make certain kinds of decisions without allowing for an alternate procedure in the case of bias.

Id. at 37.

These issues are even further compounded when the issues are theological in nature. Is it really possible to produce an "unbiased tribunal" to discuss an issue of theology?

116 The dissent correctly noted that the proper way to resolve the property claims of the excommunicated would be for that group to make a claim "for a division of the assets and judgment for their share." Id. at 63-64.

117 Zechariah Chafee, The Internal Affairs of Associations Not For Profit (1930), 43 Harv. L. Rev. 993 at p. 1024.

118 [1993] 2 All ER 249 (QB).

119 Id. at 253. This religious status granted him certain rights under British law, including the right to perform marriages.

120 As there is no "right" to be a congregational rabbi.

121 Indeed, the essence of plaintiff's claim was that the Chief Rabbi did not conform to the substantive requirements of Jewish law which, in plaintiff's opinion, require that this type of determination be made by three dayanim, sitting Jewish law judges, in the context of a formal beit din, a Jewish court, and not as an administrative determination by the Chief Rabbi; id. at 255.

This author is inclined to agree with the posture of the Chief Rabbi that such determinations need not be made by a formal beit din. The rationale for such an informal procedure is that a determination of actual sexual impropriety and the legal consequences of such conduct can only be made by a Jewish court. However, a rabbi can be defrocked by the much lower mere standard of appearance of impropriety (see Rabbi Moshe Isserless (Rama) Choshen Mishpat 25:2, which is an administrative determination.

One thing is clear, the British Court correctly realized that the proper standard to use is beyond the determination of the Queens Bench.

122 Id. at 255. In this case the Court seems to find that there was no employment contract, and thus no breach of secular law; id at 255-6.

123 Subsumed within this second justification is the possibility that the person will repent and wish to return to the community.

124 See generally Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).

125 Wollersheim v. Church of Scientology, 212 Cal. App. 3d 872, 890, 260 Cal. Rptr. 331, 343, (CA Ct. App., 1989).

126 Larkin, 459 US at 126 n.10.

127 Vesting entanglement is the term used for the problem that results when the government delegates its authority to an ecclesiastical group.

128 Laurence Tribe, American Constitutional Law, 2nd ed. (Publisher, 1988): 1229 (notes omitted, emphasis in original).

129 This is consistent with Supreme Court precedent which has repeatedly declined to recognize "religious group rights" as a value higher than the aggregate of individual group rights; see Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986) and Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). For an article arguing that "religious rights should be recognized as of a higher value", see Fredrick Gedicks, "Toward A Constitutional Jurisprudence of Religious Group Rights," Wisconsin Law Review (1989): 99.

130 Guinn, 775 P.2d at 780.

131 696 F.Supp. at 839.

132 Sifton states:

To the extent that the Weg affirmation alleges that plaintiff will suffer battery, trespass, or theft in the absence of a religious prohibition against those acts, plaintiff has failed to show that such injury is imminent or likely. The harm which will give rise to an injunction must be "not remote and speculative but actual and imminent."

133 For more on this, see pages 1 to 1.

134 This fits in well with the purpose of the Restatement also. Once the purpose of the excommunication is not to hurt or punish the person but simply to exclude them, the tort of intentional inflection of emotional distress is inapplicable. Section 46 of The Restatement (Second) of Torts now states:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

There are three basic elements that must be shown in order to allow a recovery under this tort. (1) Defendant must have intended to inflict severe emotional distress; (2) The conduct must be "extreme and outrageous"; (3) severe emotional distress must result. See Restatement (Second) of Torts, (1965): §46(1).

A religion that announces a violation of its norms of conduct, without any intent to punish the violator, or otherwise cause that person harm, -- but whose motives are merely to tell the faithful what conduct conforms to the norms of the faith -- will never "intend to inflict severe emotional distress" and thus will never be liable under this tort. The purer the religious motives are, the less likely a recovery will be allowed.

135 This author is not so naive as to think that religions with unprotected motives will announce their motives as such. However, once a legal test of purpose is announced, religious exclusion practices -- whatever their "true" motives -- will have to craft themselves around the fact that excommunication and shunning practices that appear designed to punish will probably not be granted tort law immunity. Eventually, such practices will cease; see text accompanying note ..

136 Paul, discussed supra in text accompanying note ..

137 Bear, discussed supra in text accompanying note ..

138 Thus, for example, there are situations where Jewish law encourages divorce; indeed, Jewish law categorically prohibits reconciliation in certain circumstances. Accepting the test used by Bear, one could easily conclude that a rabbi who informs a congregant of the position of Jewish law, and tells them that the Creator desires them to obey, is liable.

139 Tribe correctly classifies these rights as "rights of Religious Autonomy;" Tribe, American Constitutional Law, 1154. The crucial insight is autonomy, and not coercion of others.

140 Guinn, discussed supra in text accompanying note ..

141 A modified version of the Guinn test can be found in "Religious Torts: Applying the Consent Doctrine as Definitional Balancing," University of California at Davis Law Review 19:949 (1986): 975-83, which argues that membership in a religious faith creates a rebuttable presumption that one consents to the faith's rules. The problem is that this consent is simply untrue when it comes to religious discipline. People rarely if ever consent to public humiliation. Particularly in situations where the one being punished by the faith employs a lawyer to deter the faith's activity, the "consent through membership" doctrine is simply inapplicable.

142 For example, see Wollersheim v. Church of Scientology, 260 Cal. Rptr. 331 (Ct. App., 1989) which rules that all discipline is in fact non-consensual.

143 Hayden, supra note ., at 651.

144 For example, in Hadnot v. Shaw, 826 P.2d 978, (Okla., 1992) the Oklahoma Supreme Court had to address the issue of constructive withdrawal and implied consent. Indeed, the court, it appears allowed post withdrawal action needed to re-enforce discipline under some form of a consent theory, even when it was clear that the disciplined individuals considered themselves free from the religious dictates of the church, and did everything except actually send in a letter of withdrawal.

145 Supra at text accompanying note ..

146 Supra note ..

147 Supra note ..

148 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-25 (1976).

149 Thus, for example, government clearly can prevent a non-denominational social club from limiting, based on religious faith, its membership. A religious social club should have that right; see New York State Club Association, Inc., v. City of New York, 487 U.S. 1 (1988).

150 Rabbi Shabtai ben Meir Hachohen, Gevurat Anashim 72 cited in Pitchei Teshuva Even Haezar 154:30. Many commentaries on the Shulchan Aruch other than Pitchei Teshuva express dissent to Gevurat Anashim's rule. See Aruch Hashulchan Even Haezer 154:63, Maharam M'Lublin 1 and 39, Eliyahu Rabbah 1-3, Rav Betzalel Ashkenazi 6 and 10, Chief Rabbi Yitzchak Isaac Halevi Herzog, Techuka Liyisrael Al Pi Hatorah III:202 and 209).