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.

Comments

[Longtobefree]

"disclosure of his identity in the public record would reveal highly sensitive and personal information that would result in a social stigma."

Interesting. In this day of social media mobs and cancel culture, wouldn't this now include voter registrations?

[Martinned]

Well, as far as I know all US states have the secret ballot. Who you vote for is nobody's business exactly for this reason. I'm not sure why the same logic should apply to voter registration as such.

(Though as a general matter of privacy I would argue that you should not be required to disclose private information to the general public as a condition of voting, but that's a different line of reasoning.)

[DaivdBehar]

Again, the damage to be avoided is social stigma. Unless that results in physical or financial damage, it is imaginary damage. Verklempt is worth nothing.

Why not go after the people who socially stigmatize the plaintiffs, and cause financial or physical damage.

Eugene, a denier about the utter failure of the vile toxic, scumbag lawyer profession. His review of pseudonymity is covering up the failure of this Mafia.

[Reallynotbob]

Your solution to people who socially stigmatize litigants is to hire more lawyers and sue those people in another lawsuit? That doesn't sound like you.

[DaivdBehar]

I support the effective rule of law, and oppose endless cycles of violent revenge, kidnappings and assassinations, the alternative.

I object to rent seeking, where lawyers churn business and return nothing of value. Replace these thieving scumbags with apps written and owned by the legislature. Get legal relief in a millisecond for free. If the app is wrong, compensate the victims of the app for the damages. No immunity. Immunity fully justifies violence in formal logic and undermines the rule of law. Formal logic is supreme over all rules and treaties, save for the denier lawyer.

[Mr. Bumble]

I wonder how much the growth of the internet and social media plays in the desire to proceed anonymously? Public access to records can now be only a keystroke away.

[Martinned]

Clearly the question of what is a proprortionate intrusion on free speech rights, or a proportionate intrusion on someone's right to a fair trial, depends on context like the growth of the internet, like you say. Unfortunately, American constitutional law typically relies on black & white categorisations, which leads to absurd results that ignore developments in the real world.

[Martinned]

The most difficult case I've ever seen in this respect is the English Court of Appeal case of Re M (Children) [2017] EWCA Civ 2164, 20 December 2017. (Anonymised like all family law cases in England.)

The explanation is in this blog post, but the gist of it is that the father of a Hasidic family came out as trans, and was refused any further contact with the children by the mother. Question: should the court order some form of contact even though there was considerable risk that the children would be ostracised by the Hasidic community in Manchester as a result?

[Commenter_XY]

Martinned....I would say, 'yes' = Should the court order some form of contact even though there was considerable risk that the children would be ostracised by the Hasidic community in Manchester as a result?

[OtisAH]

If the general public cannot be protected from other peoples’ religious communities, and members of religious communities cannot be protected from their own religious communities, where does that leave us?

[Krychek_2]

I'm a firm believer in the premise that adults who join dysfunctional religions have made their choices and are stuck with them, and their remedy is to leave dysfunctional religion.

It's a more difficult question when children are involved since they generally have not made a choice to be part of dysfunctional religion.

The dynamic is similar to being in an abusive relationship with a husband/boyfriend who beats the wife/girlfriend and kids. We do not tell women in such relationships to stay and hope things get better; we tell her to run for the nearest exit and not look back. And she may be legally responsible if she chooses to do nothing about the abuse and the kids get hurt as a result.

[Mr. Bumble]

Got any examples of a "dysfunctional" religion? Who gets to decide?

[Reallynotbob]

And leaving one's community can be difficult. Mothers who leave their abusers are frequently compelled by court order to continue to participate in some aspect of the community, even if it's just sending the kids to the father's home every weekend.

[Krychek_2]

Mr. Bumble, take a look at the picture embedded in this column that begins with "You're nothing without me." I'd say that pretty much sums it up:

https://frankscottage.blog/tag/is-god-an-abuser/

[Mr. Bumble]

From the link you provided:

"This blog opens up the conversation to anyone who wants to take part in a relaxed, laid-back environment where folks have time to consider things and engage in respectful debates. That’s why I’ve called this website Frank’s Cottage – I want you to feel welcome to sit on a deck chair, sip a drink, watch the sunset over the lake and talk about things that really matter."

That's your idea of a "dysfunctional" religion?

[Krychek_2]

Did you look at the picture?

[Mr. Bumble]

So a picture is a "dysfunctional" religion? Did you read the blog?
So far the only thing that has been dysfunctional are your posts.

[Krychek_2]

I specifically called attention to the picture, not the blog, because the picture is what I am focused on. The blog itself is totally irrelevant to my point.

And no, the picture is not dysfunctional religion; it describes dysfunctional religion. A picture of you isn't really you either.

You're either very, very stupid, or pretending to be very, very stupid.

[Mr. Bumble]

...and what dysfunctional religion does the picture describe? Please be specific.

[Krychek_2]

I repeat, you are either very, very stupid, or pretending to be very, very stupid.

[Life of Brian]

I specifically called attention to the picture, not the blog, because the picture is what I am focused on. The blog itself is totally irrelevant to my point.

The blog itself deconstructs the picture in great detail. If you didn't want that context factored into the discussion, posting it as a source for your picture was pretty silly.

["Paul"]

You have the paragraph beginning, "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 analysis there is wrong. The petitioner isn't seeking anonymity because he belongs to a group with backward views; he's seeking anonymity because he belongs to a group with views. The idiosyncrasy of the views matters only insofar as it creates a need to establish their existence and parameters by some means other than the court's general awareness of prevailing social norms. But the fact that outsiders view them derisively adds nothing to the analysis: it is the negative reaction of the members that creates the risk of social harm, and nothing else.

Consider three examples;

P1 belongs to a religious community that maintains a moral prohibition on homosexual acts. P1 files a lawsuit that necessitates the revelation that he has engaged in homosexual acts. P1 seeks to proceed pseudonymously because of a demonstrated reasonable fear that he will suffer injury to his social standing if those events are made known in his community.

P2 lives and works in a community in which prominent individuals, with whom P2 must interact for business and social purposes, overwhelmingly and publicly support GLBT+ causes. P2 files a lawsuit that necessitates the revelation that he belongs to and financially supports organizations that oppose the legal recognition of homosexual marriage. P2 seeks to proceed pseudonymously because of a demonstrated reasonable fear that he will suffer injury to his social standing if these affiliations are made known in his community.

P3 lives in a community that was once the site of an industrial disaster caused by Acme Corp., and where the residents continue to revile Acme Corp. P3 files a lawsuit that necessitates the revelation that he has performed numerous consulting jobs on behalf of Acme Corp. P3 seeks to proceed pseudonymously because of a demonstrated reasonable fear that he will suffer injury to his social standing if those jobs are made known in his community.

All three Plaintiffs have the same kind of claim, and none of their claims depends on what people outside their communities think about either (a) the underlying acts or (b) the opinions of the members of the community. Tying that kind of outside assessment to the analysis is unproductive and misguided. And it needlessly seeks to send the courts (and commenters) down an avoidable rabbit hole of trying to assess the merits of a particular community's norms, mores, and views.

[Reallynotbob]

I came to say something similar. The (main) policy favoring full disclosure of litigant identities is transparency and accountability of the courts. The (main) policy favoring anonymity is reduction of collateral harm to litigants who seek court assistance. The only reason religion is important to the analysis is because religious communities tend to have more predictable, and stricter, mores about how they use their right of association. But the balancing test of the competing policies should proceed in the case of secular collateral harm just as with religious collateral harm.

I would be concerned about prejudging the "merit" of the religious view, however. In other words, the relevant question is "how significant would be the harm of disclosure to the litigant" and not whether a litigant should or should not be entitled to withhold particular types of facts from one's chosen community. The point of disclosure is honesty in the courts--not public surveillance of its members.

To add an example, what if D4 is accused in a lurid pleading of engaging in religiously prohibited behavior? The simple defamation of even a false allegation may create ostracism by D4's coreligionists. I could be persuaded to offer pre-judgment anonymity to D4 on a similar competing-balance basis. Just as I would for D5 who might suffer similar damage in secular circles.

[jdgalt1]

I'm very surprised that neither Eugene nor the other commenters have mentioned the most important cases where protection from a religious community is necessary: cases where the religious community is likely to go beyond ostracism, for example by committing honor killings for the religious crime of leaving Islam or of disagreeing with what the community regards as its principles. The law ought to provide an absolute right to privacy, backed by the penalties of an accessory to murder, where the victim predicts that and it happens. And similarly, the law needs to stop protecting cults such as Scientology which incarcerates members who try to abandon the organization.

[Eugene Volokh]

jdgalt1: It's in the article, just on p. 8 rather than in the Introduction. A future post will include this text, but here's a preview:

For a helpful contrast, consider concerns about actual physical violence rather than social or professional stigma. When there is evidence of real risk of such violence—for instance, possible physical retaliation against people who cooperated with the government or risk of violence against an asylum seeker in his home country—courts do indeed generally allow pseudonymity, entirely apart from whether the violence stems from religious views. The same would apply to people who fear religion-related violence, as in Doe v. Dordoni, which allowed pseudonymity based on a reasonable fear of violent reprisal in Saudi Arabia based on a Saudi citizen’s conversion from Islam to Christianity.

And if a woman suing for sexual assault can credibly show that, if she is publicly identified as a rape victim, she faces a risk of “honor killing” (or even nondeadly violence) from family members, that would suffice to justify pseudonymity under normal religion-neutral pseudonymity precedents. The rule allowing pseudonymity in order to diminish a risk of physical violence would thus be religion-neutral in such cases. Not so with the courts’ allowing pseudonymity to prevent social retaliation by a religious community.

[ReaderY]

There are animal rights activists who have committed terrorist attacks in this country. It’s a known fact. But this fact entitle companies to get exemptions from ingrediant disclosure laws on grounds that if they are requires to disclose non-vegetarian ingrediants in their products, they may be subject to terrorist attacks?

Are people whose business goals are inconvenienced by vegetarians really entitled to get the law to treat all vegetarians as likely terrorists just because pro-vegetarian terrorism, and the possibility of being attacked by it, exists?

[Brett Bellmore]

There's a non-zero background level of threat of violence being directed against somebody on the basis of essentially ANY disclosure; I'd assume the threat being appealed to has to be demonstrated to rise substantially above that background.

[ReaderY]

I agree that nobody has a right not to be disaplroved of, and the state has no more business helping religious hypocrites dupe their religious peers by pretending they conform to norms when they don’t than it has business enabling secular liars and hypocrites.

The secular world has seen a great deal of peoosed laws, sometimes enacted, designed specifically to enable companies to dupe people with consumer views they don’t like. I see the two as similar. The law shouldn’t actively help companies declare their goods “organic” or “natural” or “vegetarian” or “hormone free” or similar when they aren’t. It doesn’t matter if legislators and judges think vegetarianism etc. stupid or something that ought to be discouraged. It doesn’t matter what you or I think of these things. It should not be the business of the law toactively abet fraudsters in duping the gullible, even when the gullible have dissagreeable preferences, as a matter of basic. policy.

I see the religious issues Professor Volokh focuses on as being no different from vegetarianism as seen by highly carnivorous conservatives. Just because you disagree with the proferences doesn’t justify the law in enabling religious fraudsters and hypocrites to dupe people.

Companies are simply not entitled to people’s business. They have no inherent right to it. If people want to buy vegetarian, however unfair and rediculous vegetarianism may be, companies simply have to deal with it. The law shouldn’t be in the business of sanctioning companies’ concealing truthful information about their products they are otherwise required to disclose on grounds that if they disclose this information these horrible vegetarian rubes will boycott and shun them.

I don’t see these religious cases as being any different. Nobody is entitled to others’ approval. Nobody is entitled to be a hypocrite. If people want to engage in behavior others dissapprove of, they just have to deal with the social consequences.

Real threats of violence and the like would be different. But the certainly shouldn’t simply presume vegetatians are going to be violent. And it shouldn’t presume people who shun fornicators are going to be violent either.