- 1 Jon Miranda Sep 2nd, 2009 at 6:20 am
If the Spirit indicated that excommunication was the answer, how would suing solve anything? Man’s laws don;t mean anything in the spiritual world.
- 2 Mike M. Sep 2nd, 2009 at 8:16 am
Excellent post! I hope you write this up for publication. Send it to Dialogue at the least.
- 3 Holden Caulfield Sep 2nd, 2009 at 8:24 am
“If the Spirit indicated that excommunication was the answer, how would suing solve anything? Man’s laws don;t mean anything in the spiritual world.”
- 4 Jon Miranda Sep 2nd, 2009 at 8:26 am
Some apply and some don’t.
- 5 Keri Brooks Sep 2nd, 2009 at 8:55 am
This is interesting, thanks for sharing.
- 6 Tom Sep 2nd, 2009 at 9:06 am
Still, Mormons might be uneasy that they occupy a leading spot with the Witnesses in the frequency of lawsuits over their excommunication decisions.
I’m not. The numbers are so small that I don’t think they really say anything about the relative heavy-handedness of these particular non-mainstream Christian religions’ excommunication policies.
Plus, it doesn’t really matter, but I think it’s a stretch to say that Mormons “occupy a leading spot with the Witnesses.” They had ten lawsuits, we had five. It’s more like we occupy a middle spot with the Adventists, who had three. But, whatever.
I’m very glad to see that the courts keep their noses out of Religions’ membership decisions.
- 7 Mike S Sep 2nd, 2009 at 9:29 am
I’m not a lawyer so this is just my opinion. I agree that man’s laws don’t apply in the spiritual world. However, churches do exist in societies with laws and policies. The church even fundamentally agrees to uphold the “laws of the land” in the Articles of Faith. I think the courts have rightly stepped back from determining whether an excommunication is of the “Spirit” or not, but I don’t think that’s the point here.
I think the point is how things were handled. If someone was called to a court, didn’t go, and their spouse found out for the first time about an alleged affair from a letter left in a mailbox, that doesn’t have anything to do with the spirit suggesting that excommunication may have been the right decision, but could still potentially have been in violation of the laws of the land (as well as laws of common courtesy). We no longer announce church court decisions over the pulpit (which is good). We don’t proselyte in countries where it is prohibited. We got a temple in E Germany because our members followed the laws. So to saw man’s laws don’t mean anything in the spiritual realm is a bit dogmatic.
- 8 Steve Evans Sep 2nd, 2009 at 10:10 am
Excellent stuff, Jeff. I would think by now that most excommunication lawsuits are thrown out pretty quickly.
- 9 Dave Sep 2nd, 2009 at 10:34 am
Thanks for collecting cases, Jeff.
I take issue with your phrase summarizing some of the suits directed at the Church alleging “negligence in permitting sexual abuse to occur within the religious settings.” I believe what is alleged is negligence in failing to prevent sexual abuse from occuring — “permitting” suggests there was knowledge of the misconduct and a decision to allow it to continue, which is not alleged in the cases I am familiar with.
I believe the legal issue turns on defining the duty of a congregation or denomination to put procedures in place to prevent such conduct from happening. Only if they negligently fail in that duty (which is not equivalent to “permitting” the misconduct) and the court finds negligent failure to meet that duty to be actionable would the congregation or denomination be potentially liable for the misconduct of an officer or member of a congregation.
- 10 no-man Sep 2nd, 2009 at 11:10 am
Don’t mean to turn the topic, but may I suggest a possible subject for another potential legal issue? If an adult male in the church is the subject of official church discipline (disfellowshipment, excommunication) because of homosexual behavior with other adult males, and he is later reinstated into full fellowship, an annotation is attached to his membership records that restricts him from being called to work with children or youth in any church calling. While I can see the need for such an annotation if an adult is convicted of any form of child abuse, in this case, the church is essentially making a permanent claim that the homosexual male is a danger to children or youth. Seems that said adult male could make a case that he is being wrongfully accused of child abuse, and were such an allegation be made known to anyone other than the man’s bishop, I could see a lawsuit in the works.
An interesting problem is that, to my knowledge, even a man who has committed adultery multiple times with women of any legal age, is not subject to this annotation rule. So, for example, a serial date rapist does not have his membership records annotated if he is reinstated to full fellowship. Why the disparity?
- 11 John M. Sep 2nd, 2009 at 11:21 am
#10 Where are you getting your information regarding the annotation of records of those who have been disciplined for homosexual behavior?
- 12 alice Sep 2nd, 2009 at 12:21 pm
“The numbers are so small that I don’t think they really say anything about the relative heavy-handedness of these particular non-mainstream Christian religions’ excommunication policies.”
Could it be that a great number of excommunications are visited on people who are happy enough to be leaving the community of saints anyway?
- 13 brjones Sep 2nd, 2009 at 12:27 pm
#9 – Dave, I don’t think this is quite as clear cut a distinction as it might seem. I only looked at one of the cases, and in that case it appears that when the bishop learned of a member’s molestation of his stepdaughter, he didn’t take any action to correct it, including reporting it to the Stake Prsident. Clearly there was knowledge at that point, and you could argue there was a decision to permit it to continue. More interesting to me, though, is that when the man was eventually brought before a disciplinary council for molesting his two stepdaughters for 6-8 years, he was only disfellowshipped.
In any event, the allegation in the claim was simply negligence. It didn’t specify “failiure to prevent” or “permitting abuse to continue.”
- 14 sxark Sep 2nd, 2009 at 12:36 pm
I understand that putting a letter, without postage and processing from the Post Office, in a mailbox is illegal. So, although, the act of excommunication is not judicially actionable, the method of presenting information of Church action can be addressed by the courts.
I amm surprised to hear that the court would not get involved when Church action provided motivation for “vindictiveness and hatred” toward an individual. For wouldn’t acts of vindictveness and hatred toward an individual violate that person’s rights?
And should someone be charged with certain acts of vindictiveness and hatred toward someone, I think it would be a poor defence to say, – “I did these acts because my Church excommunicated that person.” However, if it was determined that the excommunication was unwarrented, could the Church be held liable for instigating etc.?
- 15 brjones Sep 2nd, 2009 at 1:04 pm
#14 – I guess it would depend on what the particular acts of “vindictiveness and hatred” entailed. I don’t think vindictiveness and hatefulness are violations of a person’s rights, unless they are expressed through actions that independently violate someone’s rights. Even at that, you’d have to show some kind of agency relationship between the church and the person performing the acts in order to hold the church liable. If someone tells me a bunch of horrible lies about someone and I go and assault that person, the person who told me the lies isn’t going to be held liable for my actions, even though he may have been the sole motivating factor for them.
- 16 sxark Sep 2nd, 2009 at 1:16 pm
I don’t want to compare with KKK, but I thought they were successfully held liable for instigating actions etc.
- 17 brjones Sep 2nd, 2009 at 1:33 pm
#16 – I’m not familiar with that case, and I’m definitely not an expert. I’d bet though, that it was found that the KKK either intended, or at least knew (or should have known), that their behavior would lead to the ultimate result. I guess you could argue that wrongfully excommunicating someone could lead to that kind of ostracism and mistreatment, but I think that’s a tough sell absent something more. I guess “agency” is the wrong term, but I do think you’d have to show at least constructive knowledge that their actions would lead to the actions against the person, and, again, I think that’d be pretty tough.
- 18 sxark Sep 2nd, 2009 at 2:01 pm
#17- Well, according to Jeff Breinholt, who wrote the preamble here, the court didn’t get involved anyway.
I see the KKK case as ’slipping the foot in the door’, because I understand that the governing body of the local KKK provided its membership with info, of such a nature, that individuals members decided [on their own], to go out and kill someone. The relatives of the victim sued and won and received the deed to the KKK’s property.
However, Church action is confidential, but word is bound to eventually seep out and should individuals take action of vindictivenes and hatred against someone and it was later found that there was no grounds for the Church action [excommunication], then it only seems reasonable to include the Church in a lawsuit because it was a motivating factor.
- 19 brjones Sep 2nd, 2009 at 2:12 pm
#18 – Well, I’ll agree with you that there’s no telling what courts are going to do, so anything is possible. I don’t think that would be a reasonable extension of the current state of the law, though, even considering the KKK situation. Not that that means much.
- 20 sxark Sep 2nd, 2009 at 2:24 pm
The main question remains: “Is wrongfull excommunication legally redressable?” I would say: – Only if such wrongfull action results in something more than someone getting their feelings hurt. Therefore, ‘pain and suffering’, would not count.
- 21 brjones Sep 2nd, 2009 at 3:40 pm
I’m not in favor of this kind of crap cluttering up the legal system. The church is a private organization, and can choose who it wants to allow into its membership, and for what reasons. It should also be able to decide whom to exclude. As far as I’m concerned, it should be ablet to exclude for whatever reason, or for no reason at all. The only instances in which it should be legally redressable are those that have been discussed – where they may have, in the process of the excommunication or in delivering it, committed a form of slander against the individual, or where their actions have directly led to the person being otherwise harmed. I just don’t know why anyone would waste their time or money fighting back against a private group that has excluded them. Especially in the case of the mormon church, where excommunication inevitably comes with an open-arms invitation to come back to the fold after certain processes have been followed.
- 22 JD Sep 2nd, 2009 at 3:44 pm
If one feels that (s)he have been wrongly excommunicated, is there no appeals process within the Church itself that one might seek redress?
- 23 Ray Sep 2nd, 2009 at 4:28 pm
22 – Yes, there is – and sometimes it works.
- 24 Jeff Breinholt Sep 2nd, 2009 at 5:40 pm
Thanks for the great comments. My research is a work-in-progress, and your opinions are helping me refine it. One of the comments raised a question about my wording. When I describe a case as involving “negligence in failing to prevent sex abuse in a religious setting,” the assumption in law is that a duty was owed (where negligence implies that a “reasonable person” should have known.) I can see how non-lawyers might not see this very subtle distinction, but I can easily refine it with better language. Thanks again. I’ll address the growing Mormon sex abuse scandals in a future post, along with Mormon asylum, Mormon crime, and Mormon employment discrimination cases.
- 25 Peter Sep 2nd, 2009 at 8:40 pm
Excellent post, Jeff. Any idea of what happened to the Hadnot case on remand? There’s nothing on Westlaw, which seems like it might hint at settlement, but it could just as well have been unpublished for all I can tell.
- 26 Ryan Sep 3rd, 2009 at 4:24 am
I hope you go forward with this and get it published in a legal journal
- 27 Stephen M (Ethesis) Sep 3rd, 2009 at 5:49 am
In Texas we had an interesting fairly recent case involving a church that felt it had to follow the biblical injunction of public reprimands when people refused to repent, so that it discussed the affair the couple was having as a part of removing them from fellowship and calling on them to repent. Interesting case, including efforts to change it into a pastoral counseling case.