Is Wrongful Excommunication Legally Redressable?

Jeff Breinholt excommunication 41 Comments

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.[1] 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,[2] the Presbyterians,[3] the Catholics,[4] the Lutherans[5], the Congregationalists,[6] the Pentecostals,[7] the Hudderites,[8] and the Jews,[9] as well as some lesser known faiths.[10]

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.[11] 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.[12] 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.[13] Meanwhile, the Jehovah’s Witnesses have been sued 10 times.[14]

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.[15]

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.[16] 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.[17]

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.[18] 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.[19] They are also sued for more garden-variety torts, where the result is opinions without any legitimate discussion of ecclesiastic abstention.[20] 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.[22]

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 ….
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[1] 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.

[2] 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).

[3] 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).

[4] 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).

[5] Linderholm v. Kansas Conference of the Swedish Evangelical Lutheran, 97 Kan. 212, 155 P. 24 (Kan. 1916).

[6] Howard v. Covenant Apostolic Church, Inc., 124 Ohio App.3d 24, 705 N.E.2d 385
(Ohio App. 1 Dist. 1997).

[7] 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).

[8] Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 594 N.W.2d 357 (S.D. 1999).

[9] Thomas v. Fuerst, 345 Ill.App.3d 929, 803 N.E.2d 619 (Ill.App. 1 Dist. 2004).
[10] 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).

[11] 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).

[12] Adam Liptak, “Impressions of Terrorism, Drawn from Court Files” NEW YORK TIMES, Feb. 19, 2008.

[13] 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).

[14] 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).

[15] Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (Univ. of Kansas 2000) 17.

[16] 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).

[17] 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.)

[18] Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,483 U.S. 327, 107 S.Ct. 2862 (1987).

[19] 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).

[20] 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).

[21] Hadnot v. Shaw, 826 P.2d 978 (Okl. 1992).

[22] Bates v. Kingdom Hall of the Congregation, Not Reported in N.E.2d, 1986 WL 2899 (Ohio App. 1986).

Comments

comments

Comments 41

  1. 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. “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.”

    Polygamy?

  3. 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.

  4. #1: Jon

    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.

  5. 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.

  6. 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?

  7. #10 Where are you getting your information regarding the annotation of records of those who have been disciplined for homosexual behavior?

  8. “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?

  9. #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.”

  10. 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.?

  11. #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.

  12. #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.

  13. #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.

  14. #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.

  15. brjones:

    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.

  16. 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.

  17. If one feels that (s)he have been wrongly excommunicated, is there no appeals process within the Church itself that one might seek redress?

  18. 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.

  19. 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.

  20. 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.

  21. John M (11), I believe the Church Handbook of Instructions outlines the procedure for membership annotation. My information is from a man disfellowshipped and reinstated, and at the end of the discussion with his bishop when reinstated, he was told his membership record would be annotated and his bishop described the restrictions. The bishop was apparently unaware of this procedure until he was completing paperwork for reinstatement, and mentioned that he had to contact church headquarters for instructions. I find it disturbing because it seems to equate homosexuality with child sexual abuse. Also, you can be forgiven for (straight) adultery without a lifetime annotation, but if you acted with your own gender you are essentially marked for life. I don’t know if there’s a way to request that the annotation be removed.

  22. Jeff, I have a hypothetical legal question for you. It is off-topic to this post, but being a lawyer I’m hoping you will consider it:

    Suppose an ordinarily happy couple decides to divorce because of the loss of belief of one of the partners. Or, I should say, the believing spouse unilaterally decides to divorce the non-believing spouse. After establishing that their decision of marriage was based in large part on their shared religion & beliefs, and that some beliefs of that religion have changed since (eg., native americans are no longer lamanites as evidenced by the change to the Book of Mormon introduction), could a civil jury possibly find the LDS Church liable for any responsibility in relation to the failed marriage? Could any monetary penalties be assessed the Church, related to court costs or anything else?

    Perhaps this question is way out there, but perhaps there is something to it.

  23. Jon, @11 #10, 28,

    I’ve done many of these and the annotation rule only happens if the ‘other man’ was under 18. But thats only in my experience and maybe the US is different. Also, while it is true that appeals work sometimes, I would describe them as extremely rare.

    Jon Miranda #1, I saw a stake president excommunicate a man based only on his bishop’s testimony and a past, 4odd years previous, confrontation this man had with him during an interview. No two witnesses no written statement and no full support of the high council because only 5 agreed with the decision and no serious sin like adultery, he just wanted to get rid of the man. But then that was in October and the following Feb he received the letter from Pt Packer stating that he was to be released in the next stake conference so I guess God does keep an eye on his servants.

    Jeff, By the way what was the outcome of the sisters case? is it include in [16][17]?

  24. #28 “I believe the Church Handbook of Instructions outlines the procedure for membership annotation.” No, only area offices or SLC have access to do that in the current MLS system. But we need to fill in a form describing the details plus minutes of the council are sent in and if they see that there was someone under age they then add that annotation. But again this is in my experience and some US states maybe different. Some places only allow ‘contact area offices’ note due to the current privacy laws.

    #30 Since lawyers are involved here I wouldn’t dismiss any far fetched and apparently illogical case. I recall that a year or two ago a man successfully sued his ex boss for stealing his wife in an adultery case where he made some 50K or so. So anything can happen today. We even have men legally marrying men in many countries!

  25. No, it’s just way out there though there may be a finding of fault on the spouse who changed belief, if that helps.

    CarlosJC, you are talking alienation of affection, which is actionable unless the state has a heartbalm statute. Just FYI.

  26. In answer to some of the questions, I do not know the ultimate outcome of the Hadnot case. It would be interesting to find out.

    Regarding #30, I think it would a stretch to establish liability against the Church with those facts. After all, there was no affirmative act. As for the tort of “alienation of affection,” it generally requires some specific act – noe in your facts. Since my original post, I did find a case in which a woman named Nelson apparrently murdered her husband after they were excommunicated for their pre-marriage sexual relations.

    That said, I have have often noted the irony of a church that hates divorce that seems to drive a wedge in marital relations of mixed-religious couples. My wife has threatened to divorce me if I went back to church, and that’s what I tell the missionaries when they come around. It seems to stop them cold ….

  27. Jeff,

    “a woman named Nelson apparrently murdered her husband after they were excommunicated for their pre-marriage sexual relations.”

    Ooouch!

    Interesting post, by the way.

  28. Thanks for your reply, Jeff. The wedge you speak of is a very real one, affecting people I know and love, and probably thousands of others.

  29. Pingback: From the Blawgernacle – September 8, 2009 « LDS Law

  30. I can understand why the courts don’t want to get involved within the church law. But what about someone who withdraws membership from that church? Should the church be allowed to have any control over the life of someone that is not even a member of the church? Among Jehovah’s Witnesses anyone who withdraws from the church and no longer wants to be a member is treated worse than one who is disfellowshiped. I say this because if you withdraw it will take a lot longer to get reinstated. That means if you do not want to be a member anymore they will bar any friends or family from ever even speaking to you again. There has got to be some grounds for a law suit when the church has control over the lives of people who are not even members.

  31. Excommunication, Censure, Ban, and Disfellowship all mean basically the same thing; the expulsion of a person from Communion and the sacraments of the church. Anathama is also a form of excommunication and it means permenent excommunication.
    Most of the people commonly known to have been excommunicated have been major church reformers such as those who established many of the church denominations such as Luther, Huss, Calvin, Westley, Joan of Arc, etc. Most churches have some method of expelling members and they can eject someone for pretty much any reason they choose. In fact they don’t even have to give the reason for getting rid of a member. When you are a member of a church you are a member of a social club and you are expected to follow the clubs set of rules, whether right or wrong.
    In fact it is only church members that can be desciplined. A non-member can not be excommunicated or disciplined.
    Most denominations have some sort of eccleassical process for dealing with injustice and the inappropiate use of excommunication. When challenged church leaders often fail to follow the church Canons, which can open the doors for civil courts to get involved; a fact that lay members as well as church officials do not seem to know. If the church has laws they must follow them, when excommunicating members. Failure to follow the churches established laws in the process of excommunication can bring the church before a civil court.
    Separation of Church and State was never meant to protect churches, when they fail to follow there own laws and or have done something wrongly. Failure to follw the civil law can in some cases, bring the courts into church business, though the civil courts look for loopholes to avoid this. It is my personal opinion that courts hesitate to get into church cases more because of public opinion and the politics that, would arise for court judges and attorneys, who dare to bring a church case before the court.
    We all want to believe that the judicial system is fair and just. Is the Judicary totally just and unbiased, a question, everyone should think about.???
    There are very specific reasons for the use of excommunication. Examples ar herasy, idolotry, any form of sexual imorality inclucing child sex abuse, murder, abortion, and disrespect for the sacrament of communion. One of the last major document excommunications was in the early 1900’s in England, when a Priest took an Ax and hacked up several church members one Sunday morning in the church.
    Unfortunately clergy often abuse their power in their choice to use of this medievel form of censure.
    Sadly people who are excommunicated do not know that they have rights if they have been abused by the use of this power of censure, and they do not know that there are laws established for dealing with this issue both eccleastically and civilly.
    In fact excommunication is such a breach of trust that most people are devastated by the act. An interesting point is that rarely are ordinary church members excommunicated. Excommunication is usually reserved for renigade clergy who fail to obey those Bishops that they have to promise to obey in their ordination vow’s. This form of church descipline almost ceased to exsist during the 1950’s.
    I was excommunicated in 2002. The ban was eventually removed and I am now in good standing in the Diocese and Nationally.
    In my case I filed eccleasical complaints against the Priest and the Bishop. The church officials locally and Nationally rejected the complaints giving the excuse that the complaints were not written according to Canon Law. It took several attempts and a reading of the Blue Book Canons to finally figure out how to successfully, write a complaint that church officials would accept and even then, they refused to take the persons charged of conduct unbecoming a member of the clergy, before an eccleasical court. Mediation was the only option offered for resolving the problem. Just for information to really know how to write a totally proper eccleasical complaint according to Canon Law, one would almost have to be a Canon lawyer or a Canon Law Expert. A Canon lawyer has to have a civil law degree and then specialize in church or Canon Law.
    In general an excommunicated human being is hurt and sad and has no idea what they need to do especially if they are innocent of wrong doing. Separating a person from their church issolates the person, and if their life centers around the church, its activities, and its members as close relationships the expirence can be devistating.
    People under Ban would likely feel to embarassed to complain and or challenge the church leaders for their acts, because the church is one of the places where news travels fast. People talk and the word spreads quickly in the church family. I use this word Church family loosely when speaking of the church. People want to view the church as a loving supportive family built on love and trust and sometimes it is just that.
    When excommunication becomes public within the Christian community the person excommunicated becomes a victim of abuse when they are innocent of crime or wrong doing. The church members may not be told to avoid the excommunicated, but rest assurred that if someone is censored people quickly find out and of course, everyone would rathr believe that the person under Ban is the person in the wrong. No one wants to believe our clergy dressed in white ornate robes and standing in the pulpet, telling everyone how they should live sinless lives and treat brothers and sisters well would ever not live the life they preach. Frequently the excommunicated person just gives up, moves on in there life finding a new church, or else they loose faith in the church all together and give up.
    Clergy, Vestries, and Bishops, are not above the Law. Church clergy and leaders are not supposed to be in the business of seperating people from the church and God. In fact they are supposed to be servants. They are called by God and are supposed, to be in the business of drawing members including the lost into a closer relationship with the savior and they are supposed to follow the laws of the Land which means civil law. They are supposed to be like the greatest physician and do no harm. See The Charleston City Paper website. Type title of archived article “Breaking Faith” in the search block and scroll down to view story. I can be contacted at excommunicated@comcast.net

  32. It is not only clergy who practice excommunication. There are plenty of ambitious people who are members of a churches, who do not have any scruples toward anybody not in their church, and who are willing to learn what is necessary to cause excommunication of an outsider from within the power of their church. As far as I can tell, there are no guards whatsoever against that violation of justice if one is a member of a church that practices excommunication.

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