From my bookshelves: Rereading “Damned if you do, Damned if you don’t: Religious shunning and the Free Exercise clause” (1988).

In this article, published in (1988) 137 U of Penn Law Review 271, Justin Miller considers shunning – that is, the deliberate withdrawal of social, spiritual and economic contact from someone who is no longer a member in good standing in their religious community. This can have a powerful impact on the person shunned, and, Miller argues, is intentionally harmful conduct. Miller argues that the US had struck the balance between individual and group rights at the wrong place, finding an absolute constitutional protection for shunning which was inappropriate – in part because the free exercise rights of the individual being shunned have not been properly taken into account.

I enjoyed Miller’s focus on the legal relationships between individuals, as opposed to the occasionally too dominant focus on what is often called church/state relations. This shift in emphasis follows if we see a legal relationship between a religious community and its members, rather than simply relationships to the state. Nonetheless, a state retains at interest in how such disputes are resolved. As Miller says, “The state is not a party to the suit; its interests are represented by the court”.

I was less convinced by how firmly Miller came down against a strong right to shun (or rather, right not to be compelled to abstrain from shunning). The right to exit has a long standing place in thinking about religious freedom, and shunning feels to me to be related. The individual may have left the religious community and object to the severity of the consequences which follow; or they may have been expelled from the community against their will. In either case the community, and its individual members, is exiting from a relationship with the shunned person on religious grounds. The harm to the individual – at least in those cases where they have sued – is clear, but three further questions strike me. (a) How much of this harm is the loss of benefits they enjoyed through their former religious affiliation, that is a reduction to the base line had they not been a member of the religious community?; (b) How much of the left-over harm is a burden that the individual bears for exercising their religious rights, while the state respects the  religious rights of others?; (c) Does Free exercise really extend to a legal interest in remaining within a community while rejecting the beliefs of that community to such an extent that it has resolved on shunning, even if (as Miller points out astutely) it is the community that has changed rather than the individual?