The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Protecting People from Their Own Religious Communities: Jane Doe in Church and State


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. Here's the Introduction:

[* * *]

Debates about religious exemptions often involve a religious community seeking protection against secular law. But what should be done when religious community members seek protection against their own community, or at least against parts of that community? In particular, when should the legal system take steps to help such members conceal actions—actions that for the rest of us would have to be public—precisely to avoid the religious community learning about those actions?

Many legal rules require that people be identified in public documents. Litigants must generally litigate under their own names, not pseudonymously (or anonymously, two terms that are generally used interchangeably in these contexts[1]). Firearms licenses and license applications are public records in many states; so are liquor license applications. Public records laws sometimes require disclosing the names of people who have been involved in government actions.

Some of these laws provide for exceptions, for instance when requiring a litigant's "disclosure of his identity in the public record would reveal highly sensitive and personal information that would result in a social stigma."[2] And some courts have read this as authorizing confidentiality for people who might otherwise face special stigma in their religious community.[3]

Considering the possible reactions of a litigant's or applicant's religious community does make some sense, since it helps accurately estimate the social stigma this person is likely to face. And the interest in shielding people from such stigma isn't just individual but also social: For instance, we want to encourage victims of tortious misconduct to come forward, so that the civil liability system can better deter such misconduct. If we know some victims won't sue if they must be named, because they fear being ostracized by friends and family, we might want to allow them to sue pseudonymously.

At the same time, note the premise of the analysis: The claimants are entitled to protection not just from the operation of the secular legal disclosure rule, but from what is seen as the oppressive or backward view of their religious community. The community is viewed as unfairly judgmental of (for instance) sex assault victims, of people who engage in premarital sex, of people who sue fellow community members, or perhaps of drinkers and gamblers and gun owners. After all, this perceived unfairness is what gives the claimant's confidentiality argument a special edge in the request for pseudonymity—an edge that claimants who belong to other religious communities (or to no religious community) lack.

And of course, many members of the religious group might disagree with the claimant's characterization of the group. They might, for instance, argue that their group members are more loving and forgiving than most people, and thus less likely to stigmatize (for instance) the sex assault victim or erotic dancer than the public at large would be. Such questions are of course hard to decide objectively. But a court decision allowing pseudonymity on these grounds sends a clear message: The legal system doesn't approve of the community's attitudes.

Relatedly, the purpose of confidentiality in such cases—to allow a person to sue or get a permit or conceal certain records without fear of ostracism by coreligionists[4]—means that the legal system is deliberately denying the coreligionists information that they allegedly think is important to their judgments about fellow group members. If a group, for instance, thinks that erotic dancing or contraceptive use or premarital sex or extramarital sex is sinful, they have the constitutional right to think less of those who engage in such behavior, or even to shun or excommunicate them.

Group members who nonetheless want to engage in such behavior of course also have the right to try to hide it from others' censorious eyes. But should the legal system deliberately favor one group's interests over the other's, by giving those group members an extra edge in the confidentiality analysis that ordinary litigants don't get? And should the analysis be different when the legal system is keeping confidential the dissenting group members' voluntary behavior (such as consensual premarital sex or alcohol use or gambling), as opposed to dissenting group members' having been involuntarily victimized (for instance, by having been raped)?

This essay will try to lay out these matters, chiefly for the benefit of judges, lawyers, litigants, and academics who are interested in the law of pseudonymous litigation and of public records. (Most of the focus will be on pseudonymous litigation, just because that's where the cases have been so far.) But it also aims at informing the broader questions: How should the law reconcile the competing claims of religious community members?[5] And, in particular, when should the law give some people legal exemptions precisely so they can conceal their actions from religious group members who might want to react to those actions?

[1] Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings Law Journal 1353 (2022)

[2] Raiser v. Brigham Young Univ., 127 F. App'x 409, 411 (10th Cir. 2005)

[3] See infra Part I.A.

[4] I use "coreligionists" and "religious group members" somewhat loosely to mean members of a religious community whose opinions are especially important to a person. The usage is imprecise, because someone who no longer believes in a religion might still be connected with the religious community, either directly or through family, and might therefore care a great deal about what that community thinks of her; but it might make sense to trade off precision for the simplicity of just being able to say "coreligionist."

[5] This question of course also prominently arises with regard to "get statutes," which are aimed at pressuring husbands (generally Orthodox Jews) to give their wives a religious divorce (called a "get" in Hebrew) once a secular divorce has been entered: The reason the law intervenes is precisely because, among many Orthodox Jews, wives who aren't given such religious divorces are viewed as still married, and thus any later remarriages are seen as void and the children of the remarriages are viewed as illegitimate. Those laws pose their own constitutional problems, especially to the extent they are seen as coercing the husbands into engaging in religious actions. See, e.g., Megibow v. Megibow, 612 N.Y.S.2d 758 (1994); Aflalo v. Aflalo, 295 N.J. Super. 527 (1996). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace Law Review 703 (1995). But while such laws burden one of the divorcing spouses, they don't aim at constraining the religious community's actions: Once the religious divorce is given, including under compulsion of the law, the religious community generally has no further objection to the ex-wife's later remarriage.

The question has also arisen with regard to attempts to limit religious communities from excommunicating or "shunning" members, but there the law refuses to interfere with the communities' and community leaders' decisions, treating group membership as a voluntary matter that either the individual or the group may terminate without legal constraint. See, e.g., Paul v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 819 F.2d 875 (9th Cir. 1987) (shunning); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1216 (D.N.M. 2018) (shunning); Thomas v. Fuerst, 345 Ill. App. 3d 929 (2004) (excommunication); Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 1999 S.D. 62 (excommunication). And while of course this very voluntariness is protected by generally applicable laws, such as laws preventing battery, false imprisonment, and the like, those laws are indeed generally applicable: They don't specially exempt religious community members precisely because they are religious community members.