This new article of mine will be coming out next year in the Journal of Law and Religion, and I thought I'd serialize it here; there's still plenty of time for editing, so I'd love to hear people's feedback. I posted several excerpts last week (you can read them in the PDF, if you'd like), and want to finish it up this week; here's Part IV.A.
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Let's say that some members of a religious community don't deny that community members who act in particular ways are shamed by the community. Rather, those members think that such shaming is an important and valuable feature of their religious life, and indeed of their exercising their First Amendment rights.[1]
We believe that stripping, premarital sex, taking disputes to outsiders ("lashon hara," to Orthodox Jews[2]), drinking, gambling, or lending or borrowing money with interest, they might say, is contrary to God's will. One way we deter breaches of these norms is through the threat of social shaming—much as many secular institutions threaten social shaming for what they view as immoral behavior, such as racism or sexism or hostility to homosexuality. This threat helps encourage members to stay on the right path, and helps protect people from the harms that straying can cause. And instances of such shaming also serve as "teaching moments" for reminding community members about these norms.[3]
Someone suing as a John Doe (to give a pseudonymous litigation example) now claims that he's a member of our community, which condemns interest-bearing lending; and because of that he wants to sue pseudonymously over such a loan, so that we, his fellow community members, don't learn about his conduct. Normally, he wouldn't be entitled to sue pseudonymously in such a situation,[4] but here he seeks pseudonymity precisely because he fears the stigma of being labeled as a sinner by our community. But by shielding his identity, you're deliberately denying us information because you think we'll use the information illegitimately, by shaming him for his religious transgression, and perhaps being less likely to trust him.[5] You are thus preferring his preferences (and yours) over ours.
Now of course these hypothetical religious community members wouldn't be claiming some legal entitlement to surveil all their group members' sexual behavior. They aren't, for instance, trying to subpoena the bank records of all their coreligionists, so that they can identify usurers and clients of usurers. When ordinary legal rules, applied completely without regard to people's religious communities, provide community members with privacy, the community's mechanisms for enforcing its norms are stymied, but unavoidably so.
But with the pseudonymity rules I'm describing, courts are making a deliberate choice, at least in cases involving the litigant's voluntary behavior (as opposed to just the litigant's being a sexual assault victim): Precisely because a litigant is violating the norms of the litigant's religious community, they are giving the litigant extra access to pseudonymity that most litigants don't have, and denying the religious community access to information about what's happening in court—access that the general community usually has (and may well value[6]) with regard to most lawsuits. And the same would also apply to decisions to treat other kinds of records as confidential, when the purpose is to allow people to conceal information from their coreligionists.
Courts are thus observing something of a schism within a religious community—between the orthodox enforcers of norms and dissenters who reject the norms. And they are choosing to support the dissenters over the orthodox, by giving the dissenters special legal treatment, precisely because the courts condemn the beliefs that the orthodox hold (or at least because the courts think those beliefs are too militantly held).
I am not arguing here that such determinations of reactions within a community are foreclosed by the First Amendment's prohibition on courts' resolving "ecclesiastical questions," such as the proper interpretation of "church doctrine."[7] Deciding whether members of a religious group harshly condemn other members who act in particular ways (or who have been victimized in particular ways) would not generally involve "the interpretation of particular church doctrines and the importance of those doctrines to the religion"[8]—rather, it would involve estimation of how often members of a particular religious community hold particular views, not whether those views are consistent with religious doctrine or theologically important. Likewise, siding with the dissenters here rather than with the orthodox because one thinks the orthodox are being unduly judgmental is not necessarily a theological judgment as such.
Nonetheless, it does involve "tak[ing] sides in a religious matter," by deliberately favoring one religious subcommunity's approach at the expense of another's.[9] The First Amendment presumptively forbids the government from discriminating among religions, even when the discrimination targets groups based on behavior and not belief, for instance religious groups "that solicit more than fifty per cent of their funds from nonmembers."[10] It bars the government from discriminating against religious groups more broadly.[11] It should generally bar the government from favoring religious dissenters over the more religiously orthodox, or treating religious communities differently based on their more judgmental belief systems or based on their tendencies to use shame as a sanction. And even if such treatment is constitutionally permissible, it seems to me to be something that the secular legal system should generally avoid doing.
[1] Cf. Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875 (9th Cir. 1987) (rejecting, on Free Exercise Clause, a claim that the organized "shunning" of a dissenting religious group member constitutes tortious infliction of emotional distress); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1216 (D.N.M. 2018) (likewise).
[2] See supra note 33.
[3] Such overt embrace of shaming, I expect, would be more likely for voluntary behavior; presumably the groups would be less likely to expressly defend shaming of the involuntarily victimized, such as rape victims; even when such shaming of victims does happen, I expect that it would be more likely to be denied by community leaders rather than overtly endorsed.
[4] That's why I used this hypothetical, to avoid the complications that arise in, say, sexual assault cases, where some courts do allow pseudonymity even without reference to religious community norms and others don't.
[5] To be sure, many of these groups wouldn't view such behavior as grounds for excommunication; they may be open to people who sin but repent, especially when they do so in front of the community. One point of pseudonymity, though, is to avoid the need for public repentance.
[6] See Volokh, supra note 1, at 1369–70 (citing the many cases that stress the public's presumptive right to access information about who is using the courts).
[7] See, e.g., Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445–46 (1969).
[8] Id. at 450.
[9] See Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 294 F.3d 415, 425 (2d Cir. 2002) (concluding that laws that aimed at preventing mislabeling of food as kosher improperly favored the Orthodox Jewish understanding of what is kosher, and thus "t[ook] sides in a religious matter, effectively discriminating in favor of the Orthodox Hebrew view of dietary requirements"); id. at 426 ("As a result, because the challenged laws interpret 'kosher' as synonymous with the views of one branch, those of Orthodox Judaism, the State has effectively aligned itself with one side of an internal debate within Judaism. This it may not do."); Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1 (Tex. 2008) (refusing to allow liability for emotional distress—as opposed to physical injury—stemming from a religious ritual in which church members were "laying hands" on plaintiff as a means of exorcism, and concluding that, "[b]ecause providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute").
[10] Larson v. Valente, 456 U.S. 228, 230, 244, 246–47 (1982) (concluding that a rule that draws such a line "clearly grants denominational preferences of the sort consistently and firmly deprecated in our precedents").
[11] Carson v. Makin, 142 S. Ct. 1987, 1997 (2022) (holding that exclusion of religious institutions from generally available funding programs is generally unconstitutional).
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