Tort Law and Disfellowshipping

by journey-on 11 Replies latest jw friends

  • journey-on
    journey-on

    Like most of you, I inwardly seethe at the practice of disfellowshipping and the shunning that follows. I wish I could find a way to hold the WTB&TS legally responsible for what results from this heinous practice. The more I read about the psychological and emotional pain that is perpetrated on those who are shunned by friends and family after having been raised a Jehovah's Witness, the more I am convinced that there has to be a way to sue for these damages. (Maybe even a class action lawsuit.)

    If you become a Jehovah's Witness in your adult years, you enter the organization with the capacity to fully comprehend what you are doing. Whether you avail yourself of all the resources to research this cult or not is up to you.

    But, I am especially concerned about children that are raised in this fear-mongering, mind-controlling, repressive, suppressive, and oppressive environment. They have no control over what is fed into their psyches and truly do, in my opinion, become brainwashed over the many years they are subjected to it. There is bound to be some way to explore the legal ramifications of this. I've come across the following. I apologize for its length, but I would like to hear your comments in relation to what I've just said.

    http://www.jlaw.com/Articles/excom4.html

    IV. Shunning and Excommunication in American Tort Law

    The application of religious doctrines do not live in a vacuum. The way American tort law rewards or punishes certain behavior -- including religious behavior -- very much affects the frequency of the behavior. This section surveys the various theories advanced in American tort law cases that are used to discuss causes of action for harm inflicted through religions' excommunication or shunning. The Ninth Circuit Court of Appeals notes an obvious truth about the relationship between tort law doctrines and religious practices when it states:

    Permitting prosecution of a cause of action in tort, while not criminalizing the conduct at issue, would make shunning an "unlawful act." Imposing tort liability for shunning on the Church or its members would in the long run have the same effect as prohibiting the practice and would compel the Church to abandon part of its religious teachings. 82

    The Jewish tradition frequently confronted this issue in the many Eastern European communities where the government outlawed the use of excommunication and shunning. Not surprisingly, when confronted with significant governmentally imposed sanctions against this practice, the Jewish authorities ceased using exclusion as a method of community formation or maintenance. 83

    There are two basic issues that are worthy of being raised when one ponders the proper secular legal response to excommunication and shunning. The first is the applicability of the tort of intentional infliction of emotional distress 84 and other tort law doctrines that impose liability in response to non-physical damages. 85 The second is the applicability of First Amendment protection to provide positive immunity to religious groups that engage in conduct otherwise prohibited by tort law doctrines. These two doctrines are the counterbalances that form American tort law in this area.

    The reader is entitled to one caveat. The religious parameters relating to excommunication and shunning differ from religion to religion, and it is vitally important to grasp that these same terms mean drastically different forms of treatment towards shunned and excommunicated individuals depending on the faith group. For example, the Church of Scientology of California at one point -- and perhaps still 86 -- adopted a policy of "fair game" towards individuals who are excommunicated. One court described the doctrine as follows:

    Under Scientology's "fair game" policy, someone who threatened Scientology by leaving the church "may be deprived of property or injured by any means by a Scientologist ... [The targeted defector] 87 may be tricked, sued or lied to or destroyed. 88

    The State interest in protecting an excommunicated or shunned member from such practices clearly is greater than the interest in protecting a person from the more common version of religious shunning, which the Ninth Circuit described as follows:

    Members of the Jehovah's Witness community are prohibited -- under threat of their own disfellowship [shunning] -- from having any contact with disfellowshiped persons and may not even greet them. Family members who do not live in the same house may conduct necessary family business with disfellowshiped relatives but may not communicate with them on any other subject. 89

    Indeed, this is similar to the manner a person would be treated if excluded from the Jewish community, which sought to punish only through the removal from the community. 90

    This section of the paper will start with a categorization of the legal principles used in the various cases that discuss religious discipline, 91 and will then propose a general theory of how American tort law should interact with religious groups that shun and excommunicate.

    The Numerous cases that address the problems of religious exclusion, shunning and excommunication apply one of three categories of legal rules:

    1] Some courts hold as a matter of law that religious discipline can never be actionable when the disciplined member remains a member of the religious organization that is disciplining him or her. 92

    In this theory, consent proves to be the underlying defense to allegations of tortious misconduct by a religious organization. Absent membership in the faith, or after withdrawal from membership, the activities of the church are no different from any other organization in term of tort law treatment. 93

    The essential failure of this theory, in this author's opinion, is that it focuses on the status of the person being injured and misses one of the fundamental purposes of church discipline: to inform the faithful that a person's conduct violated the religion's tenets, and thus they have been excluded. 94 To allow lawsuits, particularly for the intentional infliction of emotional distress or similar torts for the use of this information (even after resignation), deprives the religious organization of its ability to standardize the conduct of its members by publicizing cases of exclusion. The community is formed by publicly establishing norms of conduct. Such cannot be done under this legal rule, as the moment a person resigns from the church, the church loses any ability to announce their exclusion. 95

    2] Some courts have held that the "religiously motivated disciple is entitled to First Amendment Protection and cannot form the basis 96" for a suit in tort.97

    These courts, including the Ninth Circuit Court of Appeals, rule that:

    Because the practice of shunning is a part of the faith of [a religion], we find that the "free exercise" provision of the United States Constitution . . . 98 precludes the plaintiff from prevailing. The defendants have a constitutionally protected privilege to engage in the practice of shunning. 99

    The most significant failure with this approach is that it places outside the scope of governmental regulation potentially egregious conduct. 100 Indeed, a very strong case can be made that the current interpretation of the First Amendment does not require that government immunize religion from tort laws that are generally applicable. Whatever the merits of Employment Division v. Smith 101 in the context of criminal law, one could see very significant problems developing were religions to be granted general tort law immunity for all conduct which is religiously directed or compelled. 102 Even limiting such an immunity to "intangible or emotional harm 103 " provides a level of immunity to a religious practice that would leave many uncomfortable. 104 Notwithstanding one commentator's endorsement of this "First Amendment" approach of complete immunity, 105 the fact remains that the granting of immunity in the face of religiously motivated tortious conduct can produce profoundly negative consequences and gives religion a license to injure enjoyed by no one else.

    3] The third theory rules that shunning or excommunication can be -- by itself -- tortious conduct subject to liability.

    This theory assumes that the state interest in preventing shunning and excommunication is strong enough to allow state interference in all of these decisions. The first case to adopt this posture, Bear v. Reformed Mennonite Church 106 advanced this argument in its simplest form:

    In our opinion, the complaint, in Counts I and II, raises issues that the 'shunning' practice of appellee church 107 and the conduct of the individuals may be an excessive interference within areas of 'paramount state concern,' i.e. the maintenance of marriage and family relationship, alienation of affection, and the tortious interference with a business relationship, which the courts of this Commonwealth may have authority to regulate, even in light of the 'Establishment' and 'Free Exercise' clauses of the First Amendment.

    Other courts have also agreed with this basic approach, and ruled that shunning and excommunication are actionable conduct even when it is unaccompanied by any other activity. 108

    This approach has the potential in it to vastly limit the scope of religion's right to self-associate and exclude others. If in fact, as Bear rules, the Constitution provides no protection from tort law liability for interfering with a spousal relationship when a minister announces that associating with a particular person -- even by that person's spouse -- violated the rules of the Faith, tort law has accomplished what no other set of legal rules can do under the Constitution. It has prevented a Faith from announcing its opinion on the ethical conduct of a portion of society, even when the faith makes no attempts to coerce compliance with its doctrines or punish adherents of other faiths.

  • OnTheWayOut
    OnTheWayOut

    The WTS has rewritten the response to a disfellowshipping enough to suggest to members how to
    treat a DF'ed person and actually suggest that they voluntarily do so, and don't do it at the
    urgings of the WTS. The WT actually says to curtail such activity without actually saying to
    totally shun them. Many JW members don't even understand the term, "shunning." Disfellowshipping
    of members seems to only be taking place when they try to discuss religious matters with the
    DF'ed person, or when they regularly associate with a DF'ed person without any pretense of
    family business.

    In reality, the WTS expects them to shun the DF'ed former member, but also expects them to say they
    do so voluntarily.

    There are former Soviet countries and places like France where such a lawsuit could take place and
    win, but I don't believe the United States would be one of those places. By the time the WTS is on a
    serious decline in the U.S., the story could be different.

    This doesn't mean that it should not be tried. These things come about because somebody is willing
    to take on the issue. Good luck with that if you find someone to take the case.

  • wednesday
    wednesday

    It is legal CYA. They did this years ago with voting, the military, and blood. An elder told me most jws know that the wts has to put things in writing to protect themselves legally, but the unwritten laws are what they hold dear. They may not be able to df you for it, but they will mark you and not associate with you. Same thing , more or less.

  • metatron
    metatron

    Countries like France and Russia are the places to hit them on this, as you note.

    I know that Eliot Spitzer ( NY Gov) offered the opinion that non-profit organizations should be held to

    the same standards as ordinary corporations. A bit visionary perhaps, but I agree. Such a move

    could hit the Society hard, after years of the fraud they've committed.

    metatron

  • BrentR
    BrentR

    I have been musing about that for years. There is such a huge difference in those who join as adults vs people like me that were born into it and had no choice. And then in my early teens being told by my parents that if I left I would be kicked out of the house. Obviousely now I know they could not have done that but at the time the had me convinced.

  • sammielee24
    sammielee24

    I totally agree with the differences. As a child you are placed in service, you are conditioned to obey and conditioned to never ask questions. That shows disobedience and disloyalty - two things the society will disfellowship for. Children of the watchtower are expected, as outlined in their own publications, to dedicate their life and their time in pioneering if at all possible, and to forgo advanced education. They are forbidden - not just asked - but they are forbidden to engage in any activity where they socialize with 'worldly' people. They are forbidden to salute the flag, sing the anthem, take very specific jobs, vote and so on - all activities that as a child you can't comprehend but are taught that they are bad. The child has no choice.

    We should also make it clear that any child who is baptized, will suffer a fate worse than an unbaptized witness, yet the terms of the baptism changed so that now the allegience is with the society and not with the watchtower. Since the penalties inflicted on the baptized are harsher, and since children do not have the comprehension skills to contract to such a life altering and life threatening cult, there should be no such thing as baptism for anyone under 21 at the very least.

    I would love to see the society start to pay damages - sammieswife.

  • OnTheWayOut
    OnTheWayOut

    The lawsuits that might win in the U.S. are from former "volunteer" Bethelites.
    Whether they are employees with rights or volunteers with little rights would lean
    toward their being employees. That means that dismissed Bethelites should be
    compensated. I see a WTS future where they leave NYC and perhaps leave the
    U.S. entirely for their HQ.

  • Leolaia
    Leolaia

    sammieswife....I think you've described the situation very well. JW children are by and large destined for failure because of how the system is set up. They are treated by the same standard as adults and adult converts in particular, even though they cannot have any form of informed consent and they lack the maturity to make binding decisions. The Society ignores that there is a maturational process in play and is blind to the fact that adults have the freedom to agree to the rules and beliefs of JWs when they become involved whereas children have no such freedom. An adult can decide whether to accept a Bible study, whether to start going to meetings, and whether they want to believe the full range of JW beliefs that one must agree to before baptism. A child first encounters the JW belief system as the unquestioned "truth" and cannot reflect on it from his or her own experience or knowledge base. Rather, he or she is discouraged from doing so by the so-called "mental regulating of Jehovah". It is thus inevitable that the "truth" is reassessed when the child's knowledge base expands and life experience increases. Some confirm their initial beliefs and remain as JWs but many discover that they no longer can share the JW beliefs as their own. Or a person's life experience has taught them that the organization is not the place they need to be. The maturing child is disadvantaged because they had an initial period of non-consensual involvement with the JWs, so the child would appear to be "rebelling" or "apostasizing" from their earlier footing when in reality they are in the same position (from a consensual point of view) as the worldly person who decides to discontinue a Bible study. The adult would simply continue being an ordinary worldly person, whereas the child would become something far worse -- a rebel against Jehovah. Without accommodating the natural maturation that children go through and without giving them the choice to decide for themselves whether the religion is right for them, the Society sets them all up for failure. At least the Amish understand this to some extent and give teens the opportunity to make their own decision (even experiencing the worldly lifestyle if they wish) before expecting them to commit to adult baptism.

  • Dagney
    Dagney
    The Society ignores that there is a maturational process in play and is blind to the fact that adults have the freedom to agree to the rules and beliefs of JWs when they become involved whereas children have no such freedom. An adult can decide whether to accept a Bible study, whether to start going to meetings, and whether they want to believe the full range of JW beliefs that one must agree to before baptism. A child first encounters the JW belief system as the unquestioned "truth" and cannot reflect on it from his or her own experience or knowledge base. Rather, he or she is discouraged from doing so by the so-called "mental regulating of Jehovah". It is thus inevitable that the "truth" is reassessed when the child's knowledge base expands and life experience increases. Some confirm their initial beliefs and remain as JWs but many discover that they no longer can share the JW beliefs as their own. Or a person's life experience has taught them that the organization is not the place they need to be. The maturing child is disadvantaged because they had an initial period of non-consensual involvement with the JWs, so the child would appear to be "rebelling" or "apostasizing" from their earlier footing when in reality they are in the same position (from a consensual point of view) as the worldly person who decides to discontinue a Bible study. The adult would simply continue being an ordinary worldly person, whereas the child would become something far worse -- a rebel against Jehovah. Without accommodating the natural maturation that children go through and without giving them the choice to decide for themselves whether the religion is right for them, the Society sets them all up for failure. At least the Amish understand this to some extent and give teens the opportunity to make their own decision (even experiencing the worldly lifestyle if they wish) before expecting them to commit to adult baptism.

    Exactly how I feel, and much better worded!

    There is no allowance for the "bloom of youth." And many times, youthful adherents without the benefit of a more balanced overview of life that comes with age, see things only in black and white. Their naivete motivates them to vigorously and courageously stand up for causes they feel are right.

    I've thought also about a minimun age requirement for baptism. Hell will freeze before that happens I know. I've also thought I would use this arguement if anybody brings my baptism in for discussion. I figured I'd say, "I was twelve and had different questions and was pressured into baptism. Next!"

  • samiam2b
    samiam2b

    What I would like to see a discussion of and have not, is that in my understanding of Constitutional Law the rights of the individual are protected - not of the religous organization. We are individually free to practice any religion we want to and the government cannot dictate our religion. The rights of the individual supercede any organization unless those rights will harm another individual.

    What does that mean to me? Let's say that a religious organization wishes to DF me or shun me... and I want to practice that religion. How does the Constition protect the rights of that organization over my own rights?

    Ok so, if in my warped way of rationalizing this concept I am agreeing to every tenets of that religous organization except I disagree about their method or manner or reason for choosing to DF me, does that in itself mean that I am no longer practicing THAT religion? In essence, selective practice of the religion?

    A doctor can be a doctor even though he/she may not perform or agree with every procedure that are available to doctors. How is this different?

    In JW world, how is the right of the body of elders to DF greater than my right to practice?

    -samiam2b

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