On December 19, 2023, the Belgian Court of Cassation confirmed the appeal decision favorable to the Jehovah’s Witnesses.
by Massimo Introvigne
“Bitter Winter” and its parent organization CESNUR, the Center for Studies on New Religions, have followed with great interest a legal case in Belgium concerning the so-called “shunning” practiced by the Jehovah’s Witnesses (and, in different forms, by other religions as well). Jehovah’s Witnesses counsel their members in good standing not to associate with ex-members who have been disfellowshipped for serious sins, and have not repented, or have publicly disassociated himself from the organization. Cohabiting relatives are not shunned, nor are those “lapsed” members who simply become inactive without publicly disassociating themselves from the Jehovah’s Witnesses either through a declaration or by joining a different religion or an organization whose membership in the Witnesses regard as incompatible with Biblical teachings.
While courts in different countries of the world (including in Belgium itself) had consistently recognized that shunning as taught and practiced by the Jehovah’s Witnesses is protected by religious liberty and is not illegal, on March 16, 2021, the Court of Ghent stated that suggesting that current members of a religious organization do not associate with ex-members who have been disfellowshipped or have publicly left the organization amounts to discrimination and incitement to hatred and should be prohibited. “Bitter Winter” published several articles criticizing the decision as dangerous for religious liberty. CESNUR organized a webinar on the decision on April 9, 2021, with the participation of lawyers, human rights activist, and leading scholars of religion including James T. Richardson, George Chryssides, and Eileen Barker.
On June 7, 2022, the Court of Appeal of Ghent overturned the first-degree decision, ruling in favor of the Jehovah’s Witnesses against both the ex-members who had acted against them and the federal Belgian anti-discrimination agency UNIA, which had entered the proceedings as a civil party. The appeal judges stated that teaching and practicing shunning in the form advocated by the Jehovah’s Witnesses, which they characterized as “passive social avoidance” of those shunned, is not illegal and is in fact protected by the principles of religious liberty. It should not be confused with cases (reported about different religions, but not about the Jehovah’s Witnesses) where ex-members are “stalked, harassed, bullied, or threatened.”
Both the hostile ex-members and UNIA filed an appeal for Cassation. On December 19, 2023, the Court of Cassation ruled again in favor of the Jehovah’s Witnesses, and finally put an end to the Ghent saga. Apart from procedural questions, the Belgian Cassation examined two arguments, that shunning as taught and practiced by the Jehovah’s Witnesses violates article 8 (on the rights of the family) and article 9 (on religious liberty—in this case, of the shunned ex-members) of the European Convention on Human Rights (ECHR) and the corresponding articles of the Belgian Constitution, and that it amounts to discrimination and harassment of those shunned.
Following the Court of Appeal, the Cassation noted that article 8 does not apply to the case of the Jehovah’s Witnesses, as their practice of shunning does not extend to cohabiting spouses and children.
The Cassation also stated that the Jehovah’s Witnesses’ shunning does not violate the freedom of religion or belief of those shunned and does not imply discrimination or harassment. The Court wrote that in the case of the Jehovah’s Witnesses the teachings on shunning consist of “guidelines relating to ordinary social intercourse,” which “strongly discourage contacts” with members who have been disfellowshipped or have publicly disassociated themselves from the organization. The guidelines “label them [these contacts] as sinful, without, however, inciting manifestly unlawful conduct,” including “stalking, threats, or harassment.”
The Cassation acknowledges that it would be forbidden to “harass, threaten, or bully ex-members,” but states that this is by no means part of the shunning policy of the Jehovah’s Witnesses. It is true that shunning may lead “to social isolation towards other members of the faith community,” but this should not be confused with a “generalized social isolation.” The Belgian Jehovah’s Witnesses are a “small faith community of about 26,000 members across Belgium,” and those shunned remain free to associate with all the other people living in the country.
In fact, article 9 of the European Convention on Human Rights (ECHR) should indeed be applied to the case, the judges note, but to protect the religious liberty of the Jehovah’s Witnesses to organize themselves as they deem fit. “The circumstance of feeling aggrieved, hurt or socially isolated from the original circle of friends by the shunning policy is not sufficient to neutralize the effect of Article 9 ECHR,” the Cassation writes, as “it must be accepted that conducts protected under Article 9 ECHR may, where appropriate, give rise to alienation vis-à-vis those close to them and hurt their feelings.”
At any rate, the Cassation concludes, “Articles 8 and 9 ECHR and Articles 19 and 22 of the Belgian Constitution also imply that everyone has the right to decide independently with whom to maintain social contacts and with whom not. Criminal courts, in accordance with the case law of the European Court of Human Rights, have only a small margin of appreciation to intervene in both (a) choices that people make in their private lives or (b) the pursuit of a religious standard of conduct within the sphere of their personal autonomy.”
Through a final decision, thus, Belgium joins several other democratic countries, including most recently the Netherlands, in recognizing that teaching and practicing shunning by the Jehovah’s Witnesses is not illegal and is part of their normal exercise of their freedom of religion or belief.