Law Matters John Carpay
In a free country, should a religious group be able to determine its own membership criteria? Or should judges have the power to impose their opinions about whether someone meets religious requirements?
The Supreme Court of Canada will soon consider this question, raised by Randy Wall, who challenged his expulsion from a Calgary congregation of Jehovah’s Witnesses.
Wall became a Jehovah’s Witness (JW) in 1980, at the age of 20. In 2014, he was disfellowshipped (expelled). A local church committee determined that he was not sufficiently repentant for having been drunk and verbally abusing his wife. A higher committee within the JW organization, and later the governing Watchtower Society of Canada, affirmed the expulsion. Wall then took the JWs to court, arguing that he had been wrongly expelled, and that the hearings and the process were unfair. As a realtor, Wall also claimed to have lost about half of his client base, because JWs now refused to have any business dealings with him, or even speak with him.
Justice Earl Wilson in Calgary issued a preliminary ruling that the court could review – and potentially set aside – the expulsion. He was also deeply troubled by the practice of JWs to actively reject disfellowshipped individuals, even when they are immediate family members. He asserted that this shunning violated freedom of association, and was an “economic threat” to Wall.
Shunning does not violate freedom of association. JWs have the freedom to associate – or not associate – with Randy Wall. Shunning is an example of how people can exercise freedom of association. One can criticize shunning as ineffective, immoral, or unjust. But in a free country, nobody has a legal right to belong to a group without that group’s consent.
If a court orders JWs to associate with someone whom JWs believe is not sufficiently committed to their faith and practices, then the court violates freedom of association (and religious freedom as well). If courts, or other outsiders, get to decide whether Randy Wall is sufficiently repentant to remain a member of a JW congregation, then the church loses a part of its vitality, integrity, and autonomy.
In a free country, a religious community has the right to set doctrinal standards. The community must therefore also have the right to expel a member who violates those standards. It’s only fair that only JWs should be allowed to determine who does or does not qualify for JW membership.
Canada’s courts are available to resolve disputes between religious entities and other parties that relate to secular matters, such as lease agreements, equipment purchases, and rentals. A person can also sue his own religious congregation for breach of contract, or damages caused by negligence. But these civil disputes are separate from the religious values question of whether someone qualifies for membership in a particular religion or denomination.
If JWs lose part of their freedom of association, so do all Canadians.
Freedom of association benefits Canada’s atheists and agnostics, and the many theists who do not embrace any particular religion. For example, Vancouver’s gay soccer league, Out for Kicks, believes in “inclusiveness” and “diversity,” and describes its purpose as facilitating “a safe, fun and recreational environment for LGBTQ players.” What would happen if some Muslims or Orthodox Jews tried to force ideological changes on Out for Kicks, by complaining that gay-positive beliefs “discriminate” against people who see gay sex as sinful? Would Out for Kicks welcome a Christian who says that he is ex-gay, and who claims that sexual orientation can change? To preserve its own identity and integrity, Out for Kicks depends on freedom of association as much as any religious group does.
The congregation of JWs in this court action is not a public actor of any kind. The congregation’s decisions do not regulate how members of the public make a living, or any aspect of commerce, recreation, health, arts or environmental activities. In a free country, a private association like this should be left alone by government, and that includes being left alone by the courts.
Freedom of association is one of the cornerstones of Canada’s free society. We should hope the Supreme Court of Canada will agree that the Canadian Charter of Rights and Freedoms does not bestow on anyone a legal right to be a member of a religious group, book club, service organization, soccer league, or any other private association.
Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (www.jccf.ca), which has applied to intervene in the Supreme Court of Canada in the case of Wall v. Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses.
