Is Wrongful Excommunication Legally Redressable?
Published by Jeff Breinholt on September 2, 2009
Jeff Breinholt is a lawyer with the U.S. Department of Justice, and a hobbyist legal researcher/writer on cultural issues, including modern American religious movements. We welcome him to Mormon Matters for a series of guest posts on legal issues in Mormonism.
Those who follow Mormonism and who worry about its treatment of dissidents might be excused for thinking that the LDS Church stands alone in its use of excommunication. I must admit I was one of them. I was wrong.
It seems that excommunication (sometimes known as “disfellowshipping”) is not unique to Mormonism. This conclusion comes from American court opinions in which aggrieved former members from a variety of faiths challenged their harsh treatment at the hands of church officials. It seems that many major American religions have been sued for wrongful excommunication. From the early part of the 20th century to the present, the defendant churches have included the Baptists, the Presbyterians, the Catholics, the Lutherans, the Congregationalists, the Pentecostals, the Hudderites, and the Jews, as well as some lesser known faiths.
What about the Mormons? I found five cases – four of which were in the last 20 years – in which the LDS Church has been sued for its allegedly heavy-handed treatment in expelling its members. How does this compare to other faiths? A few years ago, I spent some time analyzing how Muslims are treated in American law, and eventually published an article entitled “2007 Year In Review: Islam in the Courts,” which was picked up in a favorable piece by the New York Times. As a result, I received some hostile comments, including one with described me as an “Islamophobe” and claimed that I would get the same results if I applied the same methodology to any religion.
To test this claim, I turned to Mormonism, which I know. I pulled every American court opinion, from any court, mentioning the LDS faith. To defend against accusations that any description of this body of law would be anecdotal, I did the same thing with the Jehovah’s Witnesses, the Seventh Day Adventists, and the Christian Scientists.
From this survey, what can we conclude about the LDS Church’s use on the excommunication remedy when we look at its legal history compared with these three other faiths with which it is commonly confused?
It turns out that the Mormon Church is sued more for its excommunication decisions than either the Christian Scientists or the Seventh Day Adventists, but not as much as the Jehovah’s Witnesses. For the Scientists and the Adventists, there were one (1) and three (3) cases, respectively, and for the Christian Scientists, we have to go back to 1955. Meanwhile, the Jehovah’s Witnesses have been sued 10 times.
Is the LDS Church is good company? The Mormons and the Witnesses are similar, in that each suffered persecution at the hands of American authorities. For the Mormons, this was mainly in the 19th Century during the days of polygamy, whereas the high-point of persecution of the Jehovah’s Witnesses was the 1940s, when they went to court over their aggressive proselytizing and their refusal to pledge allegiance to the flag and to serve in the U.S. military. Still, Mormons might be uneasy that they occupy a leading spot with the Witnesses in the frequency of lawsuits over their excommunication decisions. As one scholar described it:
The Jehovah’s Witnesses themselves, of course, provide some of the greatest examples and perhaps disturbing ironies. By and large, freedom of expression and freedom of conscience were not hallmarks of the Witnesses’ own faith, which could be painfully repressive. Although they championed religious liberty and free expression when they campaigned in the courts in the mid-1940s, the Witnesses practices a rigid faith that left virtually no room for ideological flexibility or dissent. In fact, those Witnesses who openly questioned the tenets or practices of their faith often found themselves “disfellowshipped,” that is, excommunication, and spurned.
What about the legal merits? Is wrongful excommunication judicially actionable in American law? These short answer is no, at least not yet.
In all of the Mormon/Adventist/Scientist/Witness cases challenging member expulsions, the churches prevailed, with some very minor exceptions. The stated reasons varied, but they come down to general judicial unease with getting into purely ecclesiastical matters. When presented with them, courts generally claim they lack jurisdiction. In an old case involving the Catholics, the court refused to get involved, even where it appeared the discipline was the result of vindictiveness and hatred.
This makes a certain amount of sense, even for people like me who worry about intra-religion repression. If there was a recognized tort of wrongful excommunication or clerical malpractice, defendant verdicts would look very much like as official ratification. It is one thing for your church to say you are somehow infirm in your faith or behavior. Imagine if your government agreed. A certain amount of religious autonomy is tolerable, even if individuals suffer due to the absence of judicial redress.
Of course, it may just be a matter of time before crafty lawyers succeed in chipping away at general judicial reluctance to recognize civil liability in ecclesiastic judgments. Thanks to the Mormon Church, religions are generally immune from liability for employment discrimination. However, they are frequently brought to court on tort liability theories. Look at sexual abuse. The Mormon, Adventist, and Jehovah Witnesses churches have all been sued for negligence in permitting sexual abuse to occur within the religious settings. They are also sued for more garden-variety torts, where the result is opinions without any legitimate discussion of ecclesiastic abstention. Clearly, the religious autonomy doctrine is not an absolute bar to liability.
In between these outrageous facts of sexual abuse and regular torts, there may be a growing trend towards recognizing some civil review of how humanely churches treat their members. Lawyers are already starting to rely on strategic pleadings – challenging, for example, the way and how widely the excommunication decision was communicated – to take their cases outside of the realm of a purely ecclesiastical matter. Two illustrative cases involved the Mormon Church and Jehovah’s Witnesses.
A 1992 case out of Oklahoma involved two LDS sisters, Jeanne A. Hadnot and Suzette Renee Ellis. They were each notified of and asked to be present at a Church disciplinary hearing called to determine their membership status. Neither attended. Following the hearing both received letters from the Church. The letter addressed to Hadnot was placed in her mailbox. This letter, which was opened and read by her husband, informed her that the LDS Church court determined her membership should be terminated because of her alleged fornication. Ellis was personally handed a letter also signed by a lay leader, which informed her of the Church court’s decision to remove her from membership.
The sisters sued the Church. They alleged two causes of action, advancing three theories of liability in support of each. The first cause of action is for harm from wilful or grossly negligent delivery of the expulsion letters to parishioners. It is sought to be grounded on (a) libel, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public). The second cause of action was for harm from communicating the letters’ contents to the public. It is sought to be rested on (a) slander, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public).
During the discovery phase of the litigation, the Church claimed privilege for its internal communications, and it obtained a summary judgment, which the sisters appealed, claiming that it did not deal with all of their theories of relief. The appellate court agreed, writing:
At the point when the church-member relationship is severed through an affirmative act either of a parishioner’s withdrawal or of excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity unrelated to the church’s efforts at effectuation of valid judicature, the absolute privilege from tort liability no longer attaches. …On this record, we are unable to ascertain whether parishioners did seek discovery of post-expulsion communications or conduct that lie dehors the outer bounds of valid ecclesiastical judicature. … If parishioners can show good cause for discovery of post-expulsion communications or conduct unrelated to the Church’s efforts at effectuating its valid judicature, they should be allowed to proceed further.
Similarly, a 1986 Ohio case involved a Jehovah’s Witness who was expelled and sued both for wrongful excommunication and for slander. The court of appeals reversed the trial court’s dismissal of the slander claim, writing:
Appellant has clearly set forth a legally recognized claim for relief. The claims of privilege as a defense are limited to those privileges which are recognized at law. These plus the other defenses may be determinable without having to resolve ecclesiastical questions. This will require some elements of evidence. Not knowing what, if anything, was said, the context in which it was spoken, or the degree of any ecclesiastical aspects thereof, dismissal of the slander claim was premature.
To be sure, persons who attempt to get secular courts to review the relative arbitrariness of church disciplinary decision have a tough road. However, it may be a matter of time before this starts to change, and I would not underestimate the wherewithal of the plaintiff’s bar. Stay tuned ….
 I recognize that excommunication and disfellowshipping are two different level of discipline in the LDS Church. However, courts use the terms synonymously, as I do in this article.
 Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331 (Ala. 2002); Devere Ganges v. New Central Baptist Church, 1989 WL 817108 (Pa.Com.Pl. 1989); Bowen v. Green, 275 S.C. 431, 272 S.E.2d 433 (S.C. 1980); Trett v. Lambeth, 195 S.W.2d 524 (Mo.App. 1946); Minton v. Leavell, 297 S.W. 615 (Tex.Civ.App. 1927).
 Korean Presbyterian Church of Seattle Normalization Committee v. Lee, 75 Wash.App. 833, 880 P.2d 565 (Wash.App. Div. 1,1994); Boyles v. Roberts, 222 Mo. 613, 121 S.W. 805 (Mo. 1909).
 Tran v. Fiorenza, 934 S.W.2d 740 (Tex.App.-Houston [1 Dist.] 1996); O’Connor v. Diocese of Honolulu, 77 Hawai’i 383, 885 P.2d 361 (Hawai‘i,1994); Hynes v. Lillis, 183 Mo.App. 190, 170 S.W. 396 (Mo.App. 1914).
 Linderholm v. Kansas Conference of the Swedish Evangelical Lutheran, 97 Kan. 212, 155 P. 24 (Kan. 1916).
 Howard v. Covenant Apostolic Church, Inc., 124 Ohio App.3d 24, 705 N.E.2d 385
(Ohio App. 1 Dist. 1997).
 Glass v. First United Pentecostal Church of DeRidder, 676 So.2d 724 (La.App. 3 Cir. 1996); Joiner v. Weeks, 383 So.2d 101 (La.App. 1980).
 Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 594 N.W.2d 357 (S.D. 1999).
 Thomas v. Fuerst, 345 Ill.App.3d 929, 803 N.E.2d 619 (Ill.App. 1 Dist. 2004).
 In re Godwin, — S.W.3d —-, 2009 WL 1616703 (Tex.App.-San Antonio 2009); C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389 (Tex. 2007); Gunn v. Mariners Church, Inc., Not Reported in Cal.Rptr.3d, 2005 WL 1253953 (Cal.App. 4 Dist. 2005); Penley v. C.L. Westbrook, Jr.,146 S.W.3d 220 (Tex.App.-Fort Worth 2004); Tubiolo v. Abundant Life Church, Inc.,167 N.C.App. 324, 605 S.E.2d 161 (N.C.App. 2004); McDaniel v. Phelps, Not Reported in N.E.2d, 2003 WL 70599 (Ohio App. 1 Dist. 2003); Sands v. Living Word Fellowship, 34 P.3d 955 (Alaska 2001); Marks v. Estate of Hartgerink, 528 N.W.2d 539 (Iowa 1995).
 Conover v. Intel, Not Reported in F.Supp.2d, 2006 WL 508311 (D.Or.,2006); Conover v. Archdiocese of Portland, Oregon, Not Reported in F.Supp.2d, 2005 WL 174863 (D.Or.,2005); Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198 (Utah 2001), Hadnot v. Shaw, 826 P.2d 978 (Okl. 1992); Linke v. Church of Jesus Christ of Latter Day Saints, 71 Cal.App.2d 667, 163 P.2d 44 (Cal.App. 1 Dist. 1945).
 Adam Liptak, “Impressions of Terrorism, Drawn from Court Files” NEW YORK TIMES, Feb. 19, 2008.
 Ammons v. North Pacific Conference of Seventh-Day Adventist, 103 Wash.App. 1061, Not Reported in P.3d, 2000 WL 1879053 (Wash.App. Div. 3 2000); Knauss v. Seventh-Day Adventist Ass’n of Colo., 117 Colo. 540, 190 P.2d 590 (Colo. 1948); Swan v. First Church of Christ, Scientist, in Boston, Mass, 225 F.2d 745 (9th Cir. 1955).
 Cole v. Elder Body of Tualatin Kingdom Hall Jehovah’s Witnesses, Slip Copy, 2009 WL 229978 (D.Or.,2009); Anderson v. Watchtower Bible and Tract Soc. of New York, Inc., Not Reported in S.W.3d, 2007 WL 161035 (Tenn.Ct.App. 2007); Ferreira v. Harris, Not Reported in F.Supp.2d, 2006 WL 1720546 (N.D.Okla. 2006); Abrams v. Watchtower Bible and Tract Soc. of New York, Inc., 306 Ill.App.3d 1006, 715 N.E.2d 798 (Ill.App. 1 Dist.,1999); Vauls v. Lambros, 78 Md.App. 450, 553 A.2d 1285 (Md.App. 1989); Rasmussen v. Bennett, 228 Mont. 106, 741 P.2d 755 (Mont. 1987); Paul v. Watchtower Bible and Tract Soc. of New York, Inc., 819 F.2d 875 99th Cir. 1987); Deville v. Watch Tower Bible and Tract Soc., Inc., 503 So.2d 705 (La.App. 3 Cir.1987); Bates v. Kingdom Hall of the Congregation, Not Reported in N.E.2d, 1986 WL 2899 (Ohio App.1986); Tauvar v. Bar Harbor, Congregation of the Jehovah’s Witnesses, Inc., 633 F.Supp. 741 (D.Me. 1985).
 Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Univ. of Kansas 2000) 17.
 See, e.g., Anderson v. Watchtower Bible and Tract Soc. of New York, Inc, Not Reported in S.W.3d, 2007 WL 161035 (Tenn.Ct.App.,2007(“In the case before us, the Church argued that the complaint asserted causes of action based on an intrachurch dispute that the courts had no authority to adjudicate….Based on the reasons set out, we reverse the trial court’s actions in denying the defendants’ motion to dismiss for lack of subject matter jurisdiction based upon the First Amendment’s protection of decision of church tribunals on religious questions. We hold that all of the plaintiffs’ claims, as alleged in the complaint, are barred by the ecclesiastical abstention doctrine. Accordingly, the amended complaint is dismissed.”). The United States Supreme Court has addressed the review of church disciplinary matters in a hierarchical church and clearly adopted a hands-off policy when courts are asked to review such matters. Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich (1976), 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).
 Irvine v. Elliott, 206 Pa. 152, 55 A. 859 (Pa. 1903)(A priest of the Protestant Episcopal church cannot hold the bishop of his diocese and a member of his congregation liable in an action of trespass for an alleged wilful and malicious conspiracy, where it is shown that defendants combined to make charges against him for violation of church law, and for immorality and forgery, and supported these charges with evidence in a trial in an ecclesiastical court, which resulted in his degradation from the ministry, although it appears that defendants may have, to some extent, been influenced by vindictiveness and hatred.)
 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,483 U.S. 327, 107 S.Ct. 2862 (1987).
 The Mormon sexual abuse cases are: Flanigan v. McCrea, 93 Wash.App. 1085, Not Reported in P.2d, 1999 WL 58767 (Wash.App. Div. 1 1999); “Jane Doe” v. Corporation of President of Church of Jesus Christ of Latter- Day Saints, 122 Wash.App. 556, 90 P.3d 1147 (Wash.App. Div. 1 2004); Doe v. Corp. of President of Church of Jesus Christ of Latter-day Saints, 98 P.3d 429 (Utah App. 2004); Fleming v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Not Reported in F.Supp.2d, 2006 WL 691331 (W.D.Wash. 2006); Fleming v. Corporation of President of Church of Jesus Christ of Latter Day Saints, Not Reported in F.Supp.2d, 2006 WL 753234 (W.D.Wash. 2006); R.K. v. Corporation of President of Church of Jesus Christ of Latter Day Saints, Not Reported in F.Supp.2d, 2006 WL 2506413 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Not Reported in F.Supp.2d, 2006 WL 2661055 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Not Reported in F.Supp.2d, 2006 WL 2661059 (W.D.Wash. 2006); Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 141 Wash.App. 407, 167 P.3d 1193 (Wash.App. Div. 1 2007); Olinger v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, 521 F.Supp.2d 577 (E.D.Ky. 2007); Joseph v. Corporation of the President Church of Jesus Christ of Latter-Day Saints, Not Reported in F.Supp.2d, 2008 WL 282163 (D.S.D. 2008); Fleming v. Church of Latter Day Saints, 275 Fed.Appx. 626 (9th Cir. 2008); Jack Doe 1 v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, Not Reported in F.Supp.2d, 2008 WL 4549075 (D.Or. 2008); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009); Kathleen B. v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, Not Reported in Cal.Rptr.3d, 2009 WL 2438419 (Cal.App. 4 Dist. 2009). The Seventh Day Adventists ones are Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (Ohio 1991); Byrd v. Faber, Not Reported in N.E.2d, 1992 WL 330189 (Ohio App. 5 Dist. 1992); Hustwaite v. Montana Conference of Seventh-Day Adventists, 303 Mont. 539, 18 P.3d 1033 (Table)(Mont. 2000); Mills v. Deehr, Not Reported in N.E.2d, 2004 WL 1047720 (Ohio App. 8 Dist. 2004); Doe v. Oregon Conference of Seventh-Day Adventists, 199 Or.App. 319, 111 P.3d 791 (Or.App. 2005).
The Jehovah’s Witnesses cases are Bryan R. v. Watchtower Bible and Tract Soc. of New York, Inc., 738 A.2d 839 (Me. 1999); Meyer v. Lindala, 675 N.W.2d 635 (Minn.App. 2004); Berry v. Watchtower Bible and Tract Soc. of New York, Inc., 152 N.H. 407, 879 A.2d 1124 (N.H. 2005); Beal v. Broadard, 19 Mass.L.Rptr. 114, Not Reported in N.E.2d, 2005 WL 1009632 (Mass.Super. 2005).
 See, e.g., Waite v. Church of Jesus Christ, Latter-Day Saints, Not Reported in F.Supp.2d, 2007 WL 951710 (E.D.Wash. 2007); Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002); Neilson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 113 Wash.App. 1050, Not Reported in P.3d, 2002 WL 31188444 (Wash.App. Div. 1,2002); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex.App.-Dallas 2000); Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987); Church of Jesus Christ of Latter Day Saints v. Superior Court, 148 Ariz. 261, 714 P.2d 431 (Ariz.App. 1985).
 Hadnot v. Shaw, 826 P.2d 978 (Okl. 1992).
 Bates v. Kingdom Hall of the Congregation, Not Reported in N.E.2d, 1986 WL 2899 (Ohio App. 1986).