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<\/p>\nA strange decision by an appeal court that ordered a disfellowshipped member of the Jehovah\u2019s Witnesses to be reinstated has been overturned.<\/p>\n
<\/p>\n
Last year, Bitter Winter reported that on July 9, 2021, Norway\u2019s Borgarting Court of Appeal had rendered one of the most bizarre decisions in the recent history of court cases about religion, ordering the Jehovah\u2019s Witnesses to readmit within their fold a woman they had disfellowshipped.<\/p>\n
There are dozens of decisions of courts all over the world, including on cases about the Jehovah\u2019s Witnesses, stating that excluding a member from a religious body is a matter that cannot be reviewed by secular courts. An order of readmission of an excluded member was unprecedented. Happily, the Supreme Court of Norway with a unanimous decision (5-0) dated May 3, 2022, has now reversed the strange appeal verdict.<\/p>\n
The facts can be shortly summarized as follows. G.N. was a married woman from a provincial Norwegian town, who was a Jehovah\u2019s Witness from 1987 to 2018. In 2018, she accepted to have dinner with a male Jehovah\u2019s Witness, himself divorced, in a restaurant in Oslo, after which they went to the man\u2019s hotel room. They started kissing and fondling. Then, she fell asleep and woke up the next morning, naked and with the man on top of her. Later, the man told her he had started engaging in oral sex with her while she was asleep.<\/p>\n
As it is well-known, Jehovah\u2019s Witnesses believe that\u2014according to the Bible\u2014sexual relations should take place only between married people. This teaching is a conditio sine qua non to be part of the religious community. Those who become Jehovah\u2019s Witnesses (including G.N.) are fully aware of it. For this reason, if believers engage in sexual activity with some who are not their spouses, the religious community will consider whether they can continue to be part of the Jehovah\u2019s Witnesses.<\/p>\n
When the ecclesiastical judicial committee of Jehovah\u2019s Witnesses examined her case G.N. said that she had drank more alcohol than usual and had willingly lied in the bed with the man, \u201ckissing and fondling.\u201d In the court case, however, she denied these circumstances and said she went to the man\u2019s room just to recover a coat she had left there, decided to take a nap because she was tired, but while sleeping she was raped.<\/p>\n
At the time, she did not feel raped, and continued to have contacts with the man after the incident. However, she had moral scruples about what happened, and told the story to the elders of her congregation, who convened an ecclesiastical judicial committee. Her behavior was regarded as immoral and she was found to be Biblically unrepentant, so she was disfellowshipped in 2018. She appealed, and an ecclesiastical appeal committee confirmed the verdict.<\/p>\n
Only after she had been disfellowshipped, she started describing what has happened to her as rape, but, rather than suing the man who had allegedly raped her, she hired a lawyer, and challenged her local congregation before secular courts. She said one of her motivations was to avoid being shunned as a disfellowshipped member, a common practice among the Jehovah\u2019s Witnesses. On June 5, 2019, a Conciliation Board sided with her, stated that she had been unfairly disfellowshipped because she had been \u201cassaulted,\u201d and declared the decision of disfellowshipping her invalid. The Jehovah\u2019s Witnesses took the case to the Follo District Court, which on February 27, 2020, reversed the Conciliation Board\u2019s verdict and decided that secular courts cannot \u201creview the decisions of a religious community that require an assessment of religious issues,\u201d including decisions by judicial ecclesiastic bodies of the Jehovah\u2019s Witnesses.<\/p>\n
However, on July 9, 2021, the Borgarting Court of Appeal in turn reversed the decision of the District Court with a 2-1 decision (the presiding judge dissented and would have confirmed the District Court\u2019s verdict). The appeal court stated that \u201cit would be offensive to the general sense of justice if someone is excluded from a religious community on the basis of something that it is possibly a rape,\u201d and ordered the Jehovah\u2019s Witnesses to readmit the woman within their fold, and pay to her damages and the case\u2019s expenses.<\/p>\n
The appeal decision was criticized by legal experts, as it opened a dangerous breach on the wall protecting religions from state\u2019s interference in their internal organization. As mentioned earlier, similar cases in other countries have been overwhelmingly decided in favor of the Jehovah\u2019s Witnesses and of other religious organizations that have excluded members through their own ecclesiastical procedures. However, in examining these decisions there is a difference of approach in the United States and Canada with respect to certain European countries. North American courts have often maintained that secular courts are prevented from reviewing decisions by ecclesiastical courts both from a substantial and a procedural point of view. Even the interpretation of procedural rules of an ecclesiastical judicial body, as a unanimous Supreme Court of Canada concluded in 2018, in itself \u201cinvolves religious doctrine\u201d and \u201cis not justiciable.\u201d Most scholars of religion would concur; since the times of Max Weber (1864\u20131920), they generally agree that procedure in a religious organization is in itself theology.<\/p>\n
In some European countries, a different approach has been adopted by courts, which have argued that secular judges cannot challenge what procedural rules a religion establishes for its judicial ecclesiastical bodies, but can check whether these rules have been applied to specific cases, and decisions have been based on materially correct facts or otherwise. This approach, for example, has been adopted in Italy, where courts have repeatedly ruled in favor of the Jehovah\u2019s Witnesses against disfellowshipped ex-members, but only after having concluded that their judicial committees had correctly and fairly applied their own rules to the known facts of the cases.<\/p>\n
In examining the appeal decision in the case of G.N., the Supreme Court of Norway adopted a hybrid approach, somewhere in the middle between the American and the Italian precedents. On the one hand, it regarded as a matter of course, based inter alia on the consistent case law of the European Court of Human Rights, that \u201cfreedom of religion does not give anyone the right to become a member or to remain a member of a particular denomination,\u201d and \u201ca religious community\u2019s assessment of religious issues cannot be tried by the courts.\u201d On the other hand, it also stated that the proceedings of ecclesiastical judicial bodies may be subject to a secular \u201cjudicial review\u201d assessing whether \u201cthe basic requirements for due process\u201d have been met. \u201cThis will include requirements for proper information of the case and adversarial proceedings. If the religious community has articles of association that contain specific and clear requirements for the case processing, the courts can also test whether these have been complied with.\u201d<\/p>\n
The Supreme Court found that in this case the religious community did not have \u201carticles of association\u201d that contains specific requirements for case processing. The Court acknowledged G.N.\u2019s argument that the elders\u2019 manual \u201cShepherd the Flock of God\u201d contains \u201ccase processing rules.\u201d However, the Court concluded that \u201cthis book is for the use of the elders in the congregations only and is not known to the members. It is designed as advice for the elders, based on the Bible, on how they should proceed in various contexts. Although it also contains advice on case processing, I do not see that it expresses rules of such a nature that the courts can make a test of whether the rules have been complied with.\u201d Note that the Supreme Court did not say that \u201cShepherd the Flock of God\u201d does not deal with \u201ccase processing,\u201d nor that elders are not supposed to follow the book. It stated that the \u201cnature\u201d of the book\u2019s statements on \u201ccase processing\u201d prevents them from being used for a test of compliance that may be performed by secular courts.<\/p>\n
What the Court look at was whether the elders\u2019 handling of the case met \u201cthe basic requirements for due process,\u201d intended as a general notion rather than one specific to the Jehovah\u2019s Witnesses or derived from their book \u201cShepherd the Flock of God.\u201d The analysis of G.N. case performed by the Court led to the conclusion that these \u201cbasic requirements for due process\u201d had been met. The Court examined \u201cthe proceedings in the Judgment Committee and the Appeals Committee.\u201d It observed that \u201cat both levels, G.N. gave a free, oral explanation. The consideration in the appeal committee was also based on a comprehensive, written complaint from G.N. There is no evidence other than that she had full opportunity to express her views on what actually happened, and what should be the consequences of this. The decision reached by the Judgment Committee and the Appeals Committee must be understood as being based on her own explanation.\u201d The Court concluded that \u201cwhat can be set out as basic, general requirements for adversarial proceedings and proper information of the case, were met.\u201d<\/p>\n
The Supreme Court noted G.N.\u2019s claims about shunning. Despite some statements that, expressed in general terms, may be regarded as inaccurate, such as that among Jehovah\u2019s Witnesses \u201cfamily members, even the closest ones, such as children and parents, should avoid having contact with a person who is excluded\u201d (in fact, this does not apply to cohabiting relatives and has exceptions) the Supreme Court agreed that the provisions on shunning, as internal rules of a religious organizations, cannot be challenged by secular judges.<\/p>\n
Judges can however examine whether material errors about the facts of the case had occurred in the proceedings before the ecclesiastical judicial bodies, the Court said. The Court thus examined whether the decisions about G.N. were based on \u201ca material incorrect fact.\u201d The judges noted that G.N. had offered different versions of the events but had never denied that she told both the judicial committee and the ecclesiastical appeal committee that she had not felt \u201cabused.\u201d G.N.\u2019s defense had argued that the judicial bodies of the Jehovah\u2019s Witnesses had misunderstood or misinterpreted the facts. The Supreme Court disagreed, and distinguished carefully between the \u201cmaterial facts\u201d and their classification as \u201cporneia,\u201d a Biblical term for sexual immorality used in several books of the New Testament. The judges concluded that the decisions taken by the Jehovah\u2019s Witnesses were \u201cnot based on an incorrect factual basis.\u201d They got the facts about the behavior of G.N. right, based on what G.N. herself told them. What the defense of G.N. was really objecting to was the qualification of this behavior as \u201cporneia.\u201d However, the Supreme Court stated that \u201ccourts cannot try to assess whether a particular course of action constitutes \u2018porneia,\u2019\u201d since this is clearly a religious and theological assessments not open to review by secular judges.<\/p>\n
For these reasons, the Supreme Court corrected the anomaly created by the Appeal Court, and concluded that \u201cthere is no basis for setting aside the exclusion of G.N. as invalid.\u201d Those critics who commented that the Supreme Court had endorsed a questionable evaluation of what constitutes \u201cporneia\u201d by the Jehovah\u2019s Witnesses misunderstood the decision. The judges did not conclude that the moral evaluation of G.N.\u2019s behavior by the Jehovah\u2019s Witnesses was right\u2014or wrong. They stated that this evaluation is a religious and theological matter. As such, it cannot be subject to review by secular judges without denying fundamental principles of religious liberty.<\/p>\n","protected":false},"excerpt":{"rendered":"
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