Courts of law throughout the world have concluded that teaching and practicing shunning is protected by religious liberty. They are right.
by Massimo Introvigne
Is shunning against secular laws? We have mentioned in previous articles two non-final decisions, which are both currently under appeal. The first by the Court of Ghent, in Belgium, which on March 16, 2021, fined the Jehovah’s Witnesses for their practice of shunning. The second of the County Governor for Oslo and Viken, in Norway, who on January 26, 2022, issued an administrative decision denying to the Jehovah’s Witnesses the state subsidy for the year 2021 they should have received as they did for the previous thirty years, again on the basis of some aspects of shunning.
Rather than the rule, these recent decisions are exceptions rendered by lower courts and authorities. There is a solid corpus of weighty international decisions stating that the teaching and practice of shunning is protected by freedom of religion, to which the Jehovah’s Witnesses are as entitled as anybody else.
The first substantial discussion of the practice was included in the 1987 decision of the United States Court of Appeals for the Ninth Circuit “Paul v. Watchtower Bible and Tract Society of New York, Inc.” The court acknowledged that the plaintiff had experienced some unpleasant incidents in being “shunned” by close friends who were Jehovah’s Witnesses after she was disfellowshipped. Nonetheless, the court maintained that, “Shunning is a practice engaged in by Jehovah’s Witnesses pursuant to their interpretation of canonical text, and we are not free to reinterpret that text… a state tort law prohibition against shunning would directly restrict the free exercise of the Jehovah’s Witnesses’ religious faith.”
In 2003 the Court of Appeal of Warsaw, in Poland (August 13, Fourth Civil Section, case VI A CA 81/03), similarly concluded that “a court is not authorized to verify attitudes of members of any religion regarding principles accepted by that denomination as well as to judge sanctions imposed on an individual who encroached that principles… This also applies to the following by its members of the obligation concerning a certain conduct toward expelled members.”
In 2005 (August 29, “Lorincz v. Jehovah’s Witnesses in Hungary”), the Hungarian Supreme Court observed that “the state shall not interfere in internal matters of the church… therefore the religious beliefs and decisions of the church concerning ethical matters shall not be subjects of jurisdiction of the state or the court,” and this includes the public announcement in a congregational meeting that a former Jehovah’s Witness has been disfellowshipped and its consequences.
In 2007, the Court of Appeals of Tennessee observed that, “The doctrines of the Jehovah’s Witnesses and their reading of scripture require that their members ostracize individuals who have been disfellowshipped. While there is no question that this practice has resulted in a painful experience for the Andersons [the plaintiffs in the case], the law does not provide a remedy for such harm. For example, in other contexts, family members sometimes become estranged from each other for various reasons on their own volition, and the law does not recognize a basis for suit for the pain caused by such estrangement. Courts are not empowered to force any individual to associate with anyone else.” “Shunning, the court said, is a part of the Jehovah’s Witnesses belief system. Individuals who choose to join the Church voluntarily accept the governance of the Church and subject themselves to being shunned if they are disfellowshipped.”
In 2012, the Administrative Court of Berlin (December 11, case VG 27 K 79.10) examined a complaint by a disfellowshipped Jehovah’s Witness against the public announcement in a congregational meeting of the measure against him, since “members of the association should have no social contact with disfellowshipped persons,” and it would become impossible for him to “to have a picnic, celebrate, do sports, go shopping, go to the theatre, have a meal at home or in a restaurant” with friends who remained in the Jehovah’s Witnesses. The court denied the request, commenting that the Jehovah’s Witnesses’ policy on these matters “is not subject to state authority” and is protected by “freedom of religion, the separation of Church and state, and the right of religious associations to self-determination.”
The Italian Supreme Court (Cassazione) in 2017 ruled that the so called “ostracism” is also protected by the principle of non-interference. The decision observed that in this case “ostracism” is “a refusal to associate” with the disfellowshipped ex-member, and “no law requires a person to behave in the opposite manner.” In fact, “no discrimination took place.” Even if one would argue that refusing to associate with disfellowshipped members violate “good manners and civilized behavior,” this would not “constitute a justiciable crime or civil tort.” Individuals, and even a whole “category,” have a right to decide to “break off or interrupt personal relations,” and courts have no business in telling them otherwise. Mentioning the 2017 Supreme Court decision, the Court of Rome on May 23, 2021, also stated that teaching and practicing shunning is not illegal.
On April 9, 2020, the Niigata District Court in Japan (case 2018 [Wa] 71) answered an ex-Jehovah’s Witness who had asked the judges to rule that disfellowshipping and shunning are illegal, that these practices are “deeply related to the content of religious doctrine and faith, and it is impossible to judge their validity or lack thereof unless one steps into the content of said doctrine and faith,” which is prohibited by constitutional principles.
In Belgium itself, before the Ghent decision of 2021, the Court of Appeal of Mons on 10 January 2012 dismissed the charge of discrimination in a case of shunning, ruling that Jehovah’s Witnesses have a right to determine their own internal rules. On 5 November 2018, the Brussels Court of Appeals confirmed that a religious congregation is free to suggest its own standards of behavior to its members, and that individual congregants have the right to decide to restrict their association with a former congregant. On February 7, 2019, the Court of Cassation confirmed the decision.
These decisions consistently regard shunning as a practice protected by freedom of religion and of association, based on two different arguments. The first is that secular courts of law cannot interfere on how religious organizations decide to self-regulate themselves and discipline their internal matters, a principle that has also been consistently affirmed by the European Court of Human Rights. Practices such as shunning are inherently religious, and judging them would involve a judgment on theology and biblical interpretation. In the case of Jehovah’s Witnesses of Moscow v. Russia (2010), the European Court of Human Rights confirmed that Jehovah’s Witnesses are a “known religion” and stated that “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.”
The second argument is that court cannot force citizens to associate with others, be they relatives or former friends, with whom, for whatever reason, they have decided they no longer want to associate. This principle goes even beyond religious freedom and enters the most intimate sphere of personal liberty. Critics of shunning quote psychological studies concluding that those shunned suffer, in varying degrees, serious emotional harm. Some of these studies show the anti-cult prejudices of their authors, but this is not even crucial. That estrangement from relatives or former friends cause some emotional and psychological harm is somewhat obvious. However, this is not unique to shunning for religious reasons, is a frequent phenomenon in our society, and is not an area where courts of law can dictate a different behavior.
Sociologists who study family relationships know that family estrangement is a growing social problem. In an ideal world, divorced ex-spouses should maintain a civilized relationship with each other. Adult children should continue to maintain a relationship with their parents, even when they believe the education they received from them could have been different or better. Of course, family estrangement is unavoidable when a spouse or children have suffered violence and abuse. Unfortunately, however, estrangement is becoming widespread even in cases where disagreements did not derive from such dramatic causes.
Religious disagreements are only one subcategory among many causes leading to estrangement. Family members or former friends may seriously quarrel about politics, money, and even sport, and stop talking to each other. In case of divorce, a spouse who feels wronged by the other may decide to permanently shun the ex-husband or wife.
These are personal decisions courts of law cannot interfere with. A family court may order a husband to pay alimony to his ex-wife, but it cannot order the two of them to keep meeting and being friends. Similarly, a court of law cannot compel Jehovah’s Witnesses to keep associating with those who have left the faith or have committed what they regard as serious sins. In short, no external authority can compel human beings to associate with somebody they do not, or no longer, like.
Opponents of the Jehovah’s Witnesses may answer that they do not ask the courts to compel individual devotees to associate with disfellowshipped ex-members (although sometimes one has the impression that this is precisely what is requested from the judges). They want courts to rule, they say, that the Jehovah’s Witnesses as an organization should be prohibited from teaching shunning. This is even more problematic, however. Many religions have similar teachings, yet one does not hear often that those orthodox Jews who do so should be prevented from teaching “herem” or Muslims from commenting about Muhammad’s hadiths about apostasy.
Few would deny that some form of shunning was taught by the authors of 1 Corinthians 5:13 (“Expel the wicked person from among you”) and 5:11 (“Do not even eat with such people”), and 2 John 10–11 (“Do not take them into your house or welcome them. Anyone who welcomes them shares in their wicked work”). Some can argue that these passages are historically conditioned and should be regarded as teaching precepts no longer in force. Others may offer a different interpretation of the same biblical passages. But it should be obvious that in a democratic society affirming religious liberty how believers interpret the Bible and teach based on these interpretations is a matter that can be debated among theologians but cannot be decided by the police officer or the judge.