Paul v. Watchtower Bible and Tract Society of New York, Inc.
875 819 F.2d 875
93 A.L.R.Fed. 737, 56 USLW 2007
Janice PAUL, a/k/a/ Janice Perez, Plaintiff-Appellant,
v.
WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC.,
Defendants-Appellee.
No. 85-4012.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 7, 1986.
Decided June 10, 1987.
*876 Robert A. Castrodale, Coulee, Wash., for the plaintiff/appellant.
Gregory J. Arpin, Spokane, Wash., for the defendant/appellee.
Before WRIGHT, TANG and REINHARDT, Circuit Judges.
REINHARDT, Circuit Judge:
Janice Paul, a former member of the Jehovah's Witness Church, appeals from the
grant of summary judgment in favor of defendants, the corporate arms of the
Governing Body of Jehovah's Witnesses. Paul contends that she is being "shunned"
by adherents of the Jehovah's Witness faith. She initially filed suit in state
court, setting forth various tort claims. Defendants removed the action on the
ground of diversity. Because the practice of shunning is a part of the faith of
the Jehovah's Witness, we find that the "free exercise" provision of the United
States Constitution and thus of the Washington State Constitution precludes the
plaintiff from prevailing. The defendants have a constitutionally protected
privilege to engage in the practice of shunning. Accordingly, we affirm the
grant of summary judgment, although for reasons different from those of the
district court. See generally Anderson v. Liberty Lobby, Inc., --- U.S. ----,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
I. Facts
Janice Paul was raised as a Jehovah's Witness. Her mother was very active in the
Church and, from the age of four, Paul attended church meetings. In 1962, when
Paul was 11 years old, her mother married the overseer of the Ephrata,
Washington congregation of Jehovah's Witnesses. In 1967, Paul officially joined
the Witnesses and was baptized.
According to Paul, she was an active member of the congregation, devoting an
average of 40 hours per month in door-to-door distribution of the Witnesses'
publications. In addition to engaging in evening home bible study, she attended
church with her family approximately 20 hours per month. She eventually married
another member of the Jehovah's Witnesses.
In 1975, Paul's parents were "disfellowshiped" from the Church. According to
Paul, her parents' expulsion resulted from internal discord within their congregation.
The Elders of the Lower Valley Congregation told Paul that she and her husband
should not discuss with other members their feeling that her parents had been
unjustly disfellowshiped. That advice was underscored by the potential sanction
of her own disfellowship were she to challenge the decision.
Sometime after the Elders' warning, Paul decided that she no longer wished to
belong to the congregation, or to remain affiliated with the Jehovah's
Witnesses. In November 1975, Paul wrote a letter to the congregation withdrawing
from the Church.
The Witnesses are a very close community and have developed an elaborate set of
rules governing membership. The Church has four basic categories of membership,
non-membership or former membership status; they are: members, non-members,
disfellowshiped persons, and disassociated persons. "Disfellowshiped persons"
are former members who have been excommunicated from the Church. One consequence
of disfellowship is "shunning," a form of ostracism. Members of the Jehovah's
Witness community are prohibited--under threat of their own disfellowship--from
having any contact with disfellowshiped persons and may not even greet them.
Family members who do not live in the same house may conduct necessary family
business with disfellowshiped relatives but may not communicate with them *877
on any other subject. Shunning purportedly has its roots in early Christianity
and various religious groups in our country engage in the practice including the
Amish, the Mennonites, and, of course, the Jehovah's Witnesses.
"Disassociated persons" are former members who have voluntarily left the
Jehovah's Witness faith. At the time Paul disassociated, there was no express
sanction for withdrawing from membership. In fact, because of the close nature
of many Jehovah's Witness communities, disassociated persons were still
consulted in secular matters, e.g. legal or business advice, although they were
no longer members of the Church. In Paul's case, for example, after having moved
from the area, she returned for a visit in 1980, saw Church members and was
warmly greeted.
In September 1981, the Governing Body of Jehovah's Witnesses, acting through the
defendants--Watchtower Bible and Tract Society of Pennsylvania, Inc., and the
Watchtower Bible and Tract Society of New York, Inc.--issued a new
interpretation of the rules governing disassociated persons. The distinction
between disfellowshiped and disassociated persons was, for all practical
purposes, abolished and disassociated persons were to be treated in the same
manner as the disfellowshiped. The September 15, 1981 issue of The Watchtower,
an official publication of the Church, contained an article entitled "Disfellowshiping--how
to view it." The article included the following discussion:
THOSE WHO DISASSOCIATE THEMSELVES
... Persons who make themselves 'not of our sort' by deliberately rejecting the
faith and beliefs of Jehovah's Witnesses should appropriately be viewed and
treated as are those who have been disfellowshiped for wrongdoing.
The Watchtower article based its announcement on a reading of various passages
of the Bible, including 1 John 2:19 and Revelations 19:17-21. The article noted
further that "[a]s distinct from some personal 'enemy' or worldly man in
authority who opposed Christians, a ... disassociated person who is trying to
promote or justify his apostate thinking or is continuing in his ungodly conduct
is certainly not one to whom to wish 'Peace' [understood as a greeting]. (1 Tim.
2:1, 2)." Finally, the article stated that if "a Christian were to throw in his
lot with a wrongdoer who ... has disassociated himself, ... the Elders ... would
admonish him and, if necessary, 'reprove him with severity.' " (citing, inter
alia, Matt. 18:18, Gal. 6:1, Titus 1:13).
Three years after this announcement in The Watchtower, Paul visited her parents,
who at that time lived in Soap Lake, Washington. There, she approached a Witness
who had been a close childhood friend and was told by this person: "I can't
speak to you. You are disfellowshiped." Similarly, in August 1984, Paul returned
to the area of her former congregation. She tried to call on some of her
friends. These people told Paul that she was to be treated as if she had been
disfellowshiped and that they could not speak with her. At one point, she
attempted to attend a Tupperware party at the home of a Witness. Paul was
informed by the Church members present that the Elders had instructed them not
to speak with her.
Upset by her shunning by her former friends and co-religionists, Paul, a
resident of Alaska, brought suit in Washington State Superior Court alleging
common law torts of defamation, invasion of privacy, fraud, and outrageous
conduct. Defendants, Watchtower Bible and Tract Associations, removed the action
to federal court pursuant to 28 U.S.C. Sec. 1441 (1982). Watchtower moved to
dismiss for lack of subject matter jurisdiction and for failure to state a claim
under Washington law. Fed.R.Civ.P. 12(b)(1) & (6). In the alternative,
Watchtower sought summary judgment. Fed.R.Civ.P. 56(b).
[1][2] The district court denied the 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction and the 12(b)(6) motion to dismiss for failure to
state a claim, but granted the motion for summary judgment. The court ruled that
it had jurisdiction over the case because the state court properly had
jurisdiction originally. See *878 Salveson v. Western States Bankcard Ass'n, 731
F.2d 1423, 1431 (9th Cir.1984). The court also held that Paul's affidavits did
not set forth facts that would establish a prima facie case for relief.
Moreover, the court ruled that even if the practice of shunning was actionable,
the court was prohibited from ruling on the issue on the ground of
ecclesiastical abstention. That doctrine prohibits courts from determining
issues of canon law. See generally Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). (FN1)
II. The Plaintiff's Cause of Action
Janice Paul seeks relief against the Church and several Church officials under
Washington state law and pleads various causes of action in tort. She claims in
essence that the practice of shunning invades interests that the state does or
should protect through its tort law.
The case is properly before the federal courts because of our diversity
jurisdiction. See 28 U.S.C. Secs. 1332 & 1447. When federal courts sit in
diversity, we apply state law. Erie R.R. v. Thompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938). Our task is complicated by the fact that there are no
Washington cases considering whether a cause of action in tort exists against a
church for "shunning" a former member or for engaging in comparable religious
practices, although the applicability of state tort law to church practices has
been the subject of recent litigation in other jurisdictions. See Annotation,
Liability of Religious Association for Damages for Intentionally Tortious
Conduct in Recruitment, Indoctrination, or Related Activity, 40 ALR 4th 1062
(1985); Miller v. Catholic Diocese of Great Falls, 728 P.2d 794 (Mont.1986).
[3] We note at the outset that in this case the actions of Church officials and
members were clearly taken pursuant to Church policy. Cf. Van Schaick v. Church
of Scientology of California, 535 F.Supp. 1125, 1142 (D.Mass.1982) (noting
plaintiff's "burden to show that the actions taken against her by individual
church members were taken pursuant to some Church policy, practice or
directive"). Although shunning is intentional, the activity is not malum in se.
The state is legitimately concerned with its regulation only to the extent that
individuals are directly harmed.
One state has recently recognized a cause of action in tort arising from the
practice of shunning. Although it did not purport to create a new tort, the
Supreme Court of Pennsylvania, in Bear v. Reformed Mennonite Church, 462 Pa.
330, 341 A.2d 105 (1975), noted that certain interests protected by the state
may be invaded when shunning occurs. As the Court stated:
the "shunning" practice of appellee church and the conduct of the individuals
*879 may be an excessive interference within areas of "paramount state concern,"
i.e. the maintenance of marriage and family relationship, alienation of
affection, and the tortious interference with a business relationship....
Id. at 107.
Under Washington tort law there are at least three basic categories of
intentional conduct that are relevant here: conduct causing emotional distress,
conduct causing alienation of affections, and conduct causing harm to
reputation. Paul claims to have suffered injuries in all three categories as a
result of the intentional actions of the Jehovah's Witnesses. Under Washington
law, "intangible-emotional" harm is, at least in some circumstances, sufficient
to support a claim in tort. See Wilson v. Lund, 80 Wash.2d 91, 98, 491 P.2d
1287, 1291 (1971) (" 'intangible-emotional' injuries can and do constitute real
and significant harms ") (emphasis in original) (permitting damages for loss of
love and companionship of dead child and for injury to or destruction of
parent-child relationship); cf. Baugh v. Thomas, 56 N.J. 203, 265 A.2d 675, 677
(N.J.1970) ("We believe that expulsion from a church or other religious
organization can constitute a serious emotional deprivation which, when compared
to some losses of property or contract rights, can be far more damaging to an
individual.").
[4] Federal courts are not precluded from affording relief simply because
neither the state Supreme Court nor the state legislature has enunciated a clear
rule governing a particular type of controversy. Were we able to invoke only
clearly established state law, litigants seeking to protect their rights in
federal courts by availing themselves of our diversity jurisdiction would face
an inhospitable forum for claims not identical to those resolved in prior cases.
Equally important, a policy by the federal courts never to advance beyond
existing state court precedent would vest in defendants the power to bar the
successful adjudication of plaintiffs' claims in cases with novel issues;
defendants could ensure a decision in their favor simply by removing the case to
federal court. Congress, in providing for removal, certainly did not intend to
provide such a weapon to defendants.
[5] Nonetheless, we need not decide here whether Washington courts would
ultimately rule that Paul has set forth a prima facie claim for relief in tort
because the defendants, in any event, possess an affirmative defense of
privilege--a defense that permits them to engage in the practice of shunning
pursuant to their religious beliefs without incurring tort liability. Were
shunning considered to be tortious conduct, the guarantee of the free exercise
of religion would provide that it is, nonetheless, privileged conduct. In
theory, we could examine the question whether the shunning of a former member of
a church is, in itself, tortious; however, we will follow the practice of
Washington courts which safeguard the free exercise of religion through the
recognition of substantive defenses to torts, rather than by negating the
plaintiff's cause of action itself (i.e. ruling that the conduct in question is
not tortious). See Carrieri v. Bush, 69 Wash.2d 536, 419 P.2d 132, 137 (1966).
The Washington practice, in addition to being the governing rule here is, in our
view, the most sensible juridical approach. See New York Times v. Sullivan, 376
U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
III. The Defendants' Privilege
Shunning is a practice engaged in by Jehovah's Witnesses pursuant to their
interpretation of canonical text, and we are not free to reinterpret that text.
(FN2) Under both the United States and Washington Constitutions, the defendants
are entitled to the free exercise of their religious beliefs. As the Washington
Supreme Court has stated, "[t]here is no question that our state constitution
protects the free exercise of religious beliefs (Const. art. 1, Sec. 11
(amendment 34))." Carrieri v. Bush, 69 Wash.2d 536, 419 P.2d 132, 137 (1966).
*880 The free exercise protections of the Washington Constitution are at least
as generous as those of the federal constitution. Indeed, in a decision rendered
last year, the Washington Supreme Court relied exclusively on federal precedent
in interpreting the scope of the free exercise protections of its constitution,
noting that the "parties have not argued persuasively for a different
application of the provisions of the First Amendment and Const. art. 1, Sec. 11
(amend. 34) of the State Constitution as they pertain to the [free] exercise of
religion." Backlund v. Board of Comm'rs of King County Hosp., 106 Wash.2d 632,
639 n. 3, 724 P.2d 981, 985 n. 3 (1986). The parties here also do not suggest
any dissimilarity between the free exercise provisions of the two constitutions.
Accordingly, we too will assume that they are identical and will base our
conclusion as to the meaning of the Washington Constitutional provisions on our
understanding of the parallel provision of the First Amendment. Cf. Examining
Bd. of Eng's v. Flores de Otero, 426 U.S. 572, 597-98, 96 S.Ct. 2264, 2278-79,
49 L.Ed.2d 65 (1976). (FN3)
[6] State laws whether statutory or common law, including tort rules, constitute
state action. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964), the Supreme Court ruled that state libel laws are subject to
the constraints of the first amendment. "The test," according to the Court, "is
not the form in which state power has been applied but, whatever the form,
whether such power has in fact been exercised." 376 U.S. at 265, 84 S.Ct. at
718. See also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936-40, 102 S.Ct.
2744, 2753-55, 73 L.Ed.2d 482 (1982); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct.
836, 92 L.Ed. 1161 (1948); American Fed'n of Labor v. Swing, 312 U.S. 321, 61
S.Ct. 568, 85 L.Ed. 855 (1941). For purposes of this test, we see no difference
between libel and other forms of torts. Clearly, the application of tort law to
activities of a church or its adherents in their furtherance of their religious
belief is an exercise of state power. When the imposition of liability would
result in the abridgement of the right to free exercise of religious beliefs,
recovery in tort is barred.
The Jehovah's Witnesses argue that their right to exercise their religion freely
entitles them to engage in the practice of shunning. The Church further claims
that assessing damages against them for engaging in that practice would directly
burden that right.
We agree that the imposition of tort damages on the Jehovah's Witnesses for
engaging in the religious practice of shunning would constitute a direct burden
on religion. The free exercise claim here is unlike the one in Braunfeld v.
Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 *881 (1960). In Braunfeld, the
United States Supreme Court upheld Sunday closing laws even though it
acknowledged that Sunday closings made the practice of their religious beliefs
more expensive for Saturday Sabbatarians, by forcing them to close their
businesses two days a week--Saturday (per religious compulsion) and Sunday (per
state compulsion). In upholding the Pennsylvania statute, the Court stated that
"to strike down ... legislation which imposes only an indirect burden on the
exercise of religion, i.e. legislation which does not make unlawful the
religious practice itself, would radically restrict the operating latitude of
the legislature." Id. at 606, 81 S.Ct. at 1147.
As the Court analyzed the issues in Braunfeld, the direct burden imposed by the
statute--Sunday closing and the financial losses attributable thereto--fell
equally on all persons. That the closing, in the end, had a greater adverse
impact on Saturday Sabbartarians was, in the Court's view, an indirect result of
the fact that members of those religions closed their places of business on
Saturdays as well. In the Court's view, the law did not regulate or prohibit
Saturday closings, (in which case it would have constituted a direct burden on
Saturday Sabbatarians) but only Sunday operations. From this, the Court
concluded that the statute did not directly regulate or prohibit a religious
practice (Saturday closings) but merely regulated a non-religious one (Sunday
business operations); accordingly, any effect on the religious practice was, in
the Court's view, "indirect." (FN4)
Here, by contrast, shunning is an actual practice of the Church itself, and the
burden of tort damages is direct. Permitting prosecution of a cause of action in
tort, while not criminalizing the conduct at issue, would make shunning an
"unlawful act." Langford v. United States, 101 U.S. (11 Otto) 341, 345, 25 L.Ed.
1010 (1879) ("[T]he very essence of a tort is that it is an unlawful act.").
Imposing tort liability for shunning on the Church or its members would in the
long run have the same effect as prohibiting the practice and would compel the
Church to abandon part of its religious teachings. Were we to permit recovery, "
'the pressure ... to forego that practice [would be] unmistakeable,' " Thomas v.
Review Board, 450 U.S. 707, 717, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981)
(quoting Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d
965 (1963)). The Church and its members would risk substantial damages every
time a former Church member was shunned. In sum, a state tort law prohibition
against shunning would directly restrict the free exercise of the Jehovah's
Witnesses' religious faith. (FN5)
In Cantwell v. Connecticut, the Supreme Court faced a claim of a direct burden
on religion. 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). There, the
appellant, also a Jehovah's Witness, was convicted of inciting a breach of the
peace. Cantwell had stopped two men on the street and asked their permission to
play a phonograph record entitled "Enemies." The record was a general attack on
organized *882 religions, in particular the Roman Catholic Church. Upon
listening, the two men were highly offended: "one of them said he felt like
hitting Cantwell and the other that he was tempted to throw Cantwell off the
street." Id. at 309, 60 S.Ct. at 905. Although Cantwell's conduct did not in
itself breach the peace, the reaction it produced--and had been likely to
produce--was a violation of the law.
In finding the conviction of Cantwell to be barred by the first amendment, the
Court recognized that "[i]n every case the power to regulate [religious conduct]
must be so exercised as not, in attaining a permissible end, unduly to infringe
the protected freedom [of the exercise of religion]." Id. at 304, 60 S.Ct. at
903. The Supreme Court noted that there had been "no assault or threatening of
bodily harm." Id. at 310, 60 S.Ct. at 906. It held that the intangible harms
caused by the exercise of Cantwell's religious belief were insufficient to
justify the imposition of civil or criminal liability. The Court ruled that the
state had failed to demonstrate that there was a "clear and present menace to
public peace and order as to render [Cantwell] liable to conviction of the
common law offense in question." Id. at 311, 60 S.Ct. at 906.
In Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the
Supreme Court once again struck down a burden on the free exercise of religion.
The Court began its analysis by noting that in previous cases where it had
upheld the imposition of burdens on the right to exercise religious beliefs
freely the "conduct or actions so regulated have invariably posed some
substantial threat to public safety, peace, or order." Id. at 403, 83 S.Ct. at
1793. Similarly, the Supreme Court reiterated its view that "[o]nly the gravest
abuses, endangering paramount interests, give occasion for permissible
limitation." Id. at 406, 83 S.Ct. at 1795 (quoting Thomas v. Collins, 323 U.S.
516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945)). More directly, the Court
expressed its disapproval of state action similar to that which the plaintiff
seeks here: "a fine imposed against appellant for her Saturday worship." Id. at
404, 83 S.Ct. at 1794. In Sherbert, what the Court termed a "fine" was only a
denial of public benefits; here, the "fine" is actual money damages. (FN6)
*883 [7] We find the practice of shunning not to constitute a sufficient threat
to the peace, safety, or morality of the community as to warrant state
intervention. The test for upholding a direct burden on religious practices is
as stringent as any imposed under our Constitution. Only in extreme and unusual
cases has the imposition of a direct burden on religion been upheld. See, e.g.,
Reynolds v. United States, 98 U.S. (8 Otto) 145, 25 L.Ed. 244 (1878) (polygamy);
Hill v. State, 38 Ala.App. 404, 88 So.2d 880 (1956) (snake handling). The harms
suffered by Paul as a result of her shunning by the Jehovah's Witnesses are
clearly not of the type that would justify the imposition of tort liability for
religious conduct. No physical assault or battery occurred. Intangible or
emotional harms cannot ordinarily serve as a basis for maintaining a tort cause
of action against a church for its practices--or against its members. Cf. West
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646, 63 S.Ct. 1178, 1189,
87 L.Ed. 1628 (1943) (Murphy, J., concurring) ("[T]he benefits that may accrue
to society from the compulsory flag salute are [not] sufficiently definite and
tangible to justify the invasion of freedom and privacy that is entailed.").
Offense to someone's sensibilities resulting from religious conduct is simply
not actionable in tort. See Cantwell, 310 U.S. 296, 60 S.Ct. 900; cf. Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Without society's
tolerance of offenses to sensibility, the protection of religious differences
mandated by the first amendment would be meaningless.
A religious organization has a defense of constitutional privilege to claims
that it has caused intangible harms--in most, if not all, circumstances. (FN7)
As the United States Supreme Court has observed, "[t]he values underlying these
two provisions [of the first amendment] relating to religion have been zealously
protected, sometimes even at the expense of others interests." Yoder, 406 U.S.
at 214, 92 S.Ct. at 1532.
Providing the Church with a defense to tort is particularly appropriate here
because Paul is a former Church member. Courts generally do not scrutinize
closely the relationship among members (or former members) of a church. Churches
are afforded great latitude when they impose discipline on members or former
members. We agree with Justice Jackson's view that "[r]eligious activities which
concern only members of the faith are and ought to be free--as nearly absolutely
free as anything can be." Prince v. Massachusetts, 321 U.S. 158, 177, 64 S.Ct.
438, 445, 88 L.Ed. 645 (1944) (concurring).
The members of the Church Paul decided to abandon have concluded that they no
longer want to associate with her. We hold that they are free to make that
choice. The Jehovah's Witnesses' practice of shunning is protected under the
first amendment of the United States Constitution and therefore under the
provisions of the Washington state constitution.
IV. Conclusion
We affirm the district court's grant of summary judgment in favor of the
defendants, Watchtower Bible Societies of New York and Philadelphia. Although we
recognize that the harms suffered by Janice Paul are real and not insubstantial,
permitting her to recover for intangible or emotional injuries would
unconstitutionally restrict the Jehovah's Witnesses free exercise of religion.
The First Amendment of the United States Constitution and therefore the
protections of the Washington Constitution provide the Jehovah's Witnesses' with
a defense to the plaintiff's *884. cause of action--the defense of privilege.
The constitutional guarantee of the free exercise of religion requires that
society tolerate the type of harms suffered by Paul as a price well worth paying
to safeguard the right of religious difference that all citizens enjoy.
AFFIRMED.
FN1. The doctrine of ecclesiastical abstention is not pertinent here. As Justice
Brennan noted for the Court in Serbian Orthodox Diocese:
[W]here resolution of the disputes cannot be made without extensive inquiry by
civil courts into religious law and polity, the First and Fourteenth Amendments
mandate that civil courts shall not disturb the decisions of the highest
ecclesiastical tribunal within a church of hierarchical polity, but must accept
such decisions as binding on them, in their application to the religious issues
of doctrine or polity before them.
426 U.S. at 709, 96 S.Ct. at 2380. Ecclesiastical abstention thus provides that
civil courts may not redetermine the correctness of an interpretation of
canonical text or some decision relating to government of the religious polity.
Rather, we must accept as a given whatever the entity decides. See id. at 710 96
S.Ct. at 2381 (Courts "must accept such decisions as final, and as binding on
[us], in their application to the case before [us].") (quoting Watson v. Jones,
80 U.S. (13 Wall.) 679, 727, 20 L.Ed. 666 (1872)). Cf. United States v. Ballard,
322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944) (courts will not inquire as to
the truth or sincerity of religious beliefs).
This limited abstention doctrine is not relevant here because Paul is not
alleging that the new rules governing disassociation are improper under Church
law. (Paul has dropped her fraud claim, cf. id. at 713, 96 S.Ct. at 2382.) Nor
does she seek relief for having been "wrongfully" disfellowshiped. Rather, she
seeks relief for the harms she has suffered as a result of conduct engaged in by
the Jehovah's Witnesses that is presumably consistent with the governing law of
the Church. Accordingly, the doctrine of Serbian Orthodox Diocese does not
apply.
FN2. See supra. note 1.
FN3. We note that some Washington state constitutional protections are more
strict than their federal counterparts. For example, Washington applies a much
more stringent standard in determining whether a state regulation violates the
state's "establishment clause." See Witters v. State Comm'n for the Blind, 102
Wash.2d 624, 689 P.2d 53, 55 (1984) ("our state constitution requires a far
stricter separation of church and state than the federal constitution); cf.
Bering v. SHARE, 106 Wash.2d 212, 721 P.2d 918, 931 (1986) (requiring higher
standard to justify state restriction of time, place, and manner restrictions on
free speech). As we note in the text, the parties here have not argued for a
stricter interpretation of the scope of the state protections of the free
exercise of religion. See, e.g., Sumner v. First Baptist Church, 97 Wash.2d 1,
639 P.2d 1358 (1982); Bolling v. Superior Court. 16 Wash.2d 373, 133 P.2d 803
(1943) (ruling after Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct.
1010, 84 L.Ed. 1375 (1940) but before West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), that the free
exercise protections of the Washington Constitution preclude conditioning
attendance at public school on flag salutation).
States are, of course, free to interpret the provisions of their constitutions
as being more protective of individual rights than are the comparable provisions
of the federal constitution. The California Supreme Court has done so for a
number of years. See, e.g., Serrano v. Priest, 5 Cal.3d 584, 487 P.2d 1241, 96
Cal.Rptr. 601, 41 ALR 3d 1187 (Cal.1971). Most recently, the Oregon Supreme
Court held that all speech is protected under the state constitution including
speech that would be considered obscene for purposes of the first amendment of
the United States Constitution. State v. Henry, 302 Or. 510, 732 P.2d 9
(Or.1987).
FN4. The reasoning of Braunfeld has been substantially undermined by subsequent
cases. See, e.g., Hobbie v. Unemployment Comm'n, --- U.S. ----, 107 S.Ct. 1046,
94 L.Ed.2d 190 (1987); Thomas v. Review Bd., 450 U.S. 707, 101 S.Ct. 1425, 67
L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d
15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965
(1963). In any event, for reasons set forth in the text immediately following,
Braunfeld is not controlling.
FN5. At oral argument, both counsel seem to agree on the principle that if the
behavior of the religious organization in question were criminal, the state
would have a sufficient interest to overcome first amendment protections. This
position is clearly incorrect. Whether a state labels a particular type of
behavior criminal or whether it enables private citizens to enforce substantive
rules of behavior through tort laws is not dispositive of the constitutional
question. As the Supreme Court noted in New York Times v. Sullivan, "we are
compelled by neither precedent nor policy to given any ... weight to ... 'mere
labels' of state law." 376 U.S. at 269, 84 S.Ct. at 720. See also McDaniel v.
Paty, 435 U.S. 618, 627 n. 5, 98 S.Ct. 1322, 1328 n. 5, 55 L.Ed.2d 593 (1978)
(noting that the Court will "consider" the state's application of a label,
although "we are not bound by it"). The constitutional analysis always entails
an examination of the interest behind the state regulation--whether criminal,
administrative, or tort.
FN6. We note that doctrinal development after Sherbert has been premised on the
fact that the direct/indirect distinction is not controlling; rather, courts
have looked to the effect of the regulation on the free exercise of religious
beliefs in order to determine whether a burden exists. Professor Nowak and his
collegues state the rule as follows: "Conditioning a significant benefit upon
conduct prohibited by a religious belief places a substantial burden on the
individual regardless of whether the burden can be labeled direct or indirect."
J. Nowak, R. Rotunda, & J. Young, Constitutional Law 1062 (2d ed. 1983). The
emergence of this analytic approach has substantially undermined the vitality of
the Court's analysis in Braunfeld.
Many courts have read Sherbert and subsequent cases as requiring the creation of
an exemption to rules governing eligibility for public benefits where a
religious person cannot, consistent with his religion, qualify for public
assistance. According to this view, where an otherwise valid state regulation
creates a burden on the free exercise of religion, the state is required to
demonstrate both that the regulation serves an unusually important interest and
that granting an exemption for the religious objector (and his coreligionists)
would "do substantial harm to that interest." L. Tribe, American Constitutional
Law Sec. 14-10, at 851-59. See EEOC v. Pacific Press Publishing Ass'n, 676 F.2d
1272, 1279 (9th Cir.1982); cf. Bucklund, 724 P.2d at 986 (formulating similar
standard). See also Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 1325,
89 L.Ed.2d 478 (1986) (O'Connor, J., dissenting) ("[G]overnment must show that
the opposing interest it asserts is of especial importance before there is any
chance that its claim can prevail [and] ... that the interest asserted will in
fact be substantially harmed by granting the type of exemption requested by the
individual."). The state must show that uniform application of its rule is the
least drastic means available for the regulation's enforcement. See, e.g.,
Callahan v. Woods, 736 F.2d 1269, 1272 (9th Cir.1984) ("the 'least drastic
means' inquiry ... is the critical aspect of the free exercise analysis."). Cf.
Hobbie, 107 S.Ct. at 1049 ("[I]nfringement [on free exercise] must be subjected
to strict scrutiny and could be justified only by proof by the State of a
compelling interest.").
We do not think the exemption inquiry undertaken in benefits cases is
particularly appropriate for claims that the state is directly burdening
religion by prohibiting a practice of a religious organization through the
creation of substantive rules of law--be they statutory or common law. However,
were we to follow the exemption approach in Paul's case, we would make the same
analysis and reach the same result we do in the text. From a practical
standpoint, in most free exercise cases it is of no significance which of the
two methods of inquiry is employed.
FN7. We also note that Paul has not presented evidence of actual malice
sufficient to overcome the constitutional privilege afforded the defendants.
While the privilege is a qualified one, the only evidence Paul has presented is
that Church members have shunned her at the direction of the Church; she has
neither alleged nor shown that members of the Church hierarchy were motivated by
reasons unrelated to their interpretation of the dictates of their religion. Cf.
Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979); Turner v.
Unification Church, 473 F.Supp. 367 (D.R.I.1978), aff'd, 602 F.2d 458 (1st
Cir.1979).