VII. Conclusion
Painting with a broad brush, certain conclusions can be drawn as to the nature of shunning, excommunication, and a host of other exclusionary practices devised by various religions to allow them to form a sub-community within modern American society.
Many religious communities cannot be fully open to any and all conduct by its members. Jewish tradition, as well as other faiths, established a mechanism and procedure for the exclusion of members of the faith who reject basic tenets of the community or faith. Such mechanisms include partial shunning, complete shunning, and in rare situations, excommunication. Each faith uses this process in different ways, to shape its own community. However, these mechanisms should be allowed to affect only people who wish to remain part of the religious sect that issued the shunning. People should be free to leave the faith group, and avoid the penalty.
Government has a regulatory interest in governing these -- and all other -- collective groups that engage in activity designed to exclude people from a particular benefit. Government is (or should be) precluded on various freedom of religion grounds, however, from regulating purely ecclesiastical or faith matters.147 These grounds should also be understood as precluding the government from preventing faith groups from forming their own special sub-communities, which excludes based on religious criteria. In that way religious groups are entitled to more protection than mere commercial enterprises.148
The right to religious exclusion cannot, however, rise to the level of implicit (or explicit) coercion to religious conformity. This issue was clearly noted in a discussion within Jewish law concerning coercion, and minority rights. Writing in the early 1600's, Rabbi Shabtai ben Meir HaCohen protested against a particular form of shunning and asserted that in the social framework of Eastern Europe in the Seventeenth Century it is tantamount to coercion and should not be allowed.149 Essentially, he states that in an insular and thoroughly intertwined Jewish community, which was the norm in the pre-emancipation communities of Eastern Europe, shunning was a form of compulsion and was thus only permitted when actual physical force was legally permitted according to Jewish law. Absent continuous interaction with the community, a single person who wishes to rebel, would perish. Shunning was coercion in that social setting. In such a society, religious minority rights disappear if even low level exclusion is allowed, and government must interfere to protect people's freedom of religion.
Such an intertwined society does not exist norm in America. Shunning and excommunication as practiced by many faiths including Judaism are no longer designed to compel (force) observance by the shunned one. The pressures imposed will no longer prevent a person from functioning or cause him or her to starve. Rather the process of shunning and excommunication creates a choice. It forces people to decide in which society they wish to reside. Only coercion to choose is involved. It does not, in its modern form, actually compel any particular activity. Just as a person has the right to remove himself or herself from a particular religious society, that society has a right to remove itself from him or her. Minority rights in the context of religious freedom has to include the right to leave a sect. It does not, however, include the right to remain part of a group, while defying that group's wishes.
Ultimately, religious freedom has to include the right to pick and to form one's own co-religionists and religious community members. This is the best protection government can give to religious minorities and still maintain a freedom of religion. |
