The Ghent Court decision declaring shunning as practiced by Jehovah’s Witnesses illegal ignores European and Belgian precedents, and is clearly wrong.
by Yannick Thiels*
*A paper presented at the Webinar “Jehovah’s Witnesses, Shunning, and Religious Liberty: The Ghent Court Decision,” April 9, 2021 [see video of the Webinar].
Excommunication and shunning are facts of modern-day life.
Professional associations, such as a lawyers’ or a medical association, routinely expel members who fail to meet minimum practice standards. The effect of being expelled as a lawyer or doctor can be profound and life-long. But no one would question the lawful right of professional associations to do so.
It is also a fact of life in many families (religious or non-religious) that the relationship may have broken down to the extent that immediate and extended family choose to no longer speak and associate with one another. The same can be said about neighbors and workmates. The “reasons” they choose to stop talking or associating with another family member, neighbor, or workmate—and encourage others to do the same—can range from a perceived slight to rivalry about “the best” football team, to intense disagreement about support for a particular trade union or political party.
But, again, no one would claim such choices are unlawful, much less a “crime.”
The European Court of Human Rights ruled in Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, 27 February 2007: “Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.”
Few would argue with that reasoning. It is elementary common sense.
Does the same hold true concerning the decision of a religion to expel an adherent and, in turn, for adherents to exercise their religious conscience to shun that person? All appellate and Supreme Court decisions that have addressed this issue have universally upheld the right of the religion to expel and shun the former adherent.
The 16 March 2021 trial court decision of the Ghent court, however, reached the opposite conclusion and found that it was a criminal offence for a religion—in this case Jehovah’s Witnesses—to teach to adherents its Biblical beliefs on excommunication and shunning. The Ghent court does not cite a single decision in Belgium, or anywhere in the world, that supports this breath-taking contention.
Ecclesiastical context
To better understand why the Ghent decision is wrong, it is helpful to have a basic understanding of the beliefs of Jehovah’s Witnesses concerning “shunning.”
Unlike other religions, Jehovah’s Witnesses do not practice infant baptism. An individual may join the religion of Jehovah’s Witnesses only after a careful study of the Bible and the beliefs of the religion, a process that takes many months or longer.
What happens if the adherent later commits a serious sin (for example, adultery or theft)? The elders will meet with the adherent and try to restore her or him to spiritual health. If they determine s/he is Scripturally unrepentant, s/he will be disfellowshipped (expelled). The elders will later make a brief announcement during a religious service that simply says: “[Name of person] is no longer one of Jehovah’s Witnesses.” Nothing else is announced or otherwise disclosed to the congregation.
A similar process if followed in the case of an adherent who informs the elders that s/he no longer wants to be one of Jehovah’s Witnesses. This is known as disassociation. The elders will make a brief announcement during a religious service that says: “[Name of person] is no longer one of Jehovah’s Witnesses.” Again, nothing else is announced or otherwise disclosed to the congregation.
In both cases, whether the person is expelled or chooses to disassociate, individual adherents will then exercise their religious conscience whether to limit or cease their association with that person based on their understanding of what the Bible commands in 1 Corinthians 5:11-13 and 2 John 1:9-11. The website of Jehovah’s Witnesses, www.jw.org, clarifies: “What of a man who is disfellowshipped but whose wife and children are still Jehovah’s Witnesses? The religious ties he had with his family change, but blood ties remain. The marriage relationship and normal family affections and dealings continue.”
An expelled or disassociated person can still attend congregation religious services, share in singing religious songs during those services, and meet with elders for spiritual counselling. S/he can also ask to be reinstated as one of Jehovah’s Witnesses.
The High Court of England and Wales held concerning this religious practice in Otuo v. Watch Tower Bible and Tract Society of Britain [2019] EWHC 1349 (QB), at para. 122: “it is to be expected that a religious body which is guided by and which seeks to apply Scriptural principles will have the power to procure that in an appropriate case a sinner can be expelled. Among other things, this is sensible, if not essential, because someone who is unable or unwilling to abide by Scriptural principles not only does not properly belong as a member of such a body but also, unless removed, may have an undesirable influence on the faithful.” (See also the decision of the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750 paras. 31, 36, 38).
Is there a legal right?
Does the expelled person have a legal right? S/he does, but not the one identified by the Ghent court. Over the decades a long line of applicants have brought variations of the Ghent-type complaints to national courts, and ultimately to the European Court of Human Rights (ECHR).
For example, in the early cases of X v. Denmark, Spetz v. Sweden, and Karlsson v. Sweden, the European Commission of Human Rights (Commission) considered applications brought by adherents against various religious decisions which had a significant impact on the adherent. In all three cases, the Commission ruled there was no violation of Article 9, and held that the “ultimate guarantee” of the complainants’ freedom of religion was their right to “leave” the church.
The ECHR has continued the same path. The clearest example is the Grand Chamber decision in Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, 9 July 2013, at paras. 137 and 165, which held: (1) “the State is prohibited from obliging a religious community to admit new members or to exclude existing ones;” (2) the right to freedom of religion “does not guarantee any right to dissent within a religious body … the individual’s freedom of religion is exercised through his freedom to leave the community;” and (3) “the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them.”
Belgium’s appeal courts have closely followed the ECHR case law on this point.
For example, in 2012, the Court of Appeal of Mons decided a case brought by a former Jehovah’s Witnesses who claimed the practice of shunning violated Belgium’s anti-discrimination act—the very same arguments made in the Ghent case. The Court of Appeal of Mons rejected the claim, concluding: “The fact that a religious movement lays down for its members and publishes in its periodicals rules of conduct to be adopted vis-a-vis former members who have been properly excluded … which are limited to the prohibition on associating with them, speaking to them or even greeting them, is not sufficient to lead to the presumption that any discrimination exists … [The complainant] is in a similar situation to a person who is properly excluded from a group or an association. He is free to associate with any and all persons outside this group and to adopt any other religion of his choice, which, moreover, he has done by becoming a Protestant.”
But, what of the Ghent court’s central argument that the shunning doctrine “stifles” religious dissent and places the excluded person in a dilemma, either to persist with his deviant practices and remain shunned, or renounce those practices and be restored to the faith (page 51-52 of the judgment)? The simple answer is what the Grand Chamber ruled in Sindicatul “Păstorul cel Bun” v. Romania: Article 9 “does not guarantee any right to dissent within a religious body.” Rather, “in the event of a disagreement over matters of doctrine or organization between a religious community and one of its members, the individual’s freedom of religion is exercised through freedom to leave the community.”
This is hardly surprising. The very nature of religion is to discourage dissent. As the European Court of Human Rights ruled in Jehovah’s Witnesses of Moscow v. Russia (no. 302/02, 10 June 2010) at para. 118: “it is a common feature of many religions that they determine doctrinal standards of behavior by which their followers must abide in their private lives.”
So, where does that leave us? The Ghent decision is clearly wrong, and is a serious violation of the Belgium Constitution and the European Convention on Human Rights, and needs to be urgently reversed.
