Jane Doe in Church and State

This new article from me will come 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 is the Intro:

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Debates over religious exemptions often involve a religious community seeking protection from secular law. But what to do when members of a religious community seek to protect themselves against their own community, or at least against parts of that community? In particular, when should the legal system take action to help these members cover up actions – actions that for the rest of us should be public – precisely to prevent the religious community from learning about these actions? ?

Many legal rules require people to be identified in public records. Litigants should generally plead under their own name, not under a pseudonym (or anonymously, two terms that are generally used interchangeably in these contexts[1]). Firearms licenses and license applications are public records in many states; the same goes for liquor license applications. Public records laws sometimes require the disclosure of the names of people who have been involved in government actions.

Some of these laws provide for exceptions, such as when requiring a litigant “to disclose their identity in public records would reveal highly sensitive and personal information that would result in social stigma.”[2] And some courts have interpreted this as allowing confidentiality for people who might otherwise face particular stigma in their religious community.[3]

Considering the possible reactions of the religious community of a litigant or an applicant makes sense, because it allows to estimate with precision the social stigmatization that this person is likely to face. And the interest in protecting people from this stigma is not only individual but also social: for example, 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 that some victims will not sue if they need to be named, because they fear being ostracized by friends and family, we may want to allow them to sue under a pseudonym.

At the same time, note the premise of the analysis: plaintiffs are entitled to protection not only from the operation of the secular legal disclosure rule, but from what is seen as the oppressive or retrogressive view of their religious community. . The community is seen as unfairly judging (for example) victims of sexual assault, people who have sex before marriage, people who sue other members of the community, or perhaps drinkers, gamblers and gun owners. After all, this perceived unfairness is what gives the plaintiff’s confidentiality argument a particular advantage in the pseudonym claim — an advantage that plaintiffs who belong to other religious communities (or no religious communities) lack.

And of course, many members of the religious group might disagree with the claimant’s characterization of the group. They might, for example, claim that their group members are more loving and forgiving than most people, and therefore less likely to stigmatize (for example) the victim of sexual assault or the erotic dancer than would the general public. Such questions are of course difficult to decide objectively. But a court ruling allowing pseudonymization on these grounds sends a clear message: the justice system does not condone community attitudes.

Along the same lines, the purpose of confidentiality in such cases – to enable a person to sue or obtain a license or conceal certain documents without fear of ostracism by co-religionists[4]—means that the legal system deliberately denies co-religionists information they deem important for their judgments about other members of the group. If a group, for example, thinks that erotic dancing or the use of contraceptives or premarital or extramarital sex are sinful, it has the constitutional right to think less of those who engage in such behavior, even to shun them or excommunicate them.

Group members who nevertheless want to engage in such behavior have of course also the right to try to hide it from the critical eyes of others. But should the legal system deliberately favor the interests of one group over the other, giving those group members an added advantage in the analysis of confidentiality that ordinary litigants do not get? And should the analysis be different when the legal system keeps confidential the voluntary behavior of members of the splinter group (such as consensual premarital sex or drinking or gambling), as opposed to the fact that members of the splinter group have been unintentionally victimized (for example, by being raped)?

This essay will attempt to present these issues, primarily for the benefit of judges, lawyers, litigants, and scholars interested in the law of pseudonymous litigation and public records. (Most of the focus will be on pseudonymous litigation, simply because that’s where the cases have been so far.) But it also aims to illuminate the larger questions: how should the law reconcile the competing claims of members of the religious community?[5] And, in particular, when should the law grant certain people legal exemptions precisely so that they can conceal their actions from members of religious groups who might want to react to those actions?

[1] Eugene Volokh, The Law of Pseudonymous Disputes73 Hastings Law Journal 1353 (2022)

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

[3] See below Part AI

[4] I use “co-religionists” and “members of a religious group” loosely to refer to members of a religious community whose views are particularly important to a person. The usage is imprecise, as a person who no longer believes in a religion may still be connected to the religious community, either directly or through family, and therefore may care a great deal about what that community thinks of it. she ; but it might make sense to sacrifice precision for the simplicity of just being able to say “co-religionist.”

[5] Of course, this question also arises prominently with regard to the “statutes of get”, which aim to pressure husbands (usually Orthodox Jews) to grant their wives a religious divorce (called ” get” in Hebrew) once a secular divorce has been granted: The reason the law intervenes is precisely because, among many Orthodox Jews, wives who do not receive such religious divorces are considered forever married, and therefore any subsequent remarriage is considered void and the children of remarriages are considered illegitimate. These laws pose their own constitutional problems, particularly insofar as they are seen to compel husbands to engage in religious actions. See, for example, Megibow c. Megibow, 612 NYS2d 758 (1994); Aflalo vs. Aflalo, 295 NJ Super. 527 (1996). See in general Lisa Zornberg, Beyond the Constitution: Is New York’s Get Legislation a Good Law? 15 Pace Law Review 703 (1995). But if such laws weigh on one of the divorced spouses, they are not intended to constrain the action of the religious community: once the religious divorce has been pronounced, including under the constraint of the law, the religious community has no usually more objection to what the ex-wife subsequent remarriage.

The question has also arisen with regard to attempts to prevent religious communities from excommunicating or “shunning” members, but here the law refuses to interfere with the decisions of communities and community leaders, treating group membership as a voluntary matter that the individual or group can terminate without legal compulsion. See, for example, Paul c. Watchtower Bible & Tract Soc’y of NY, Inc., 819 F.2d 875 (9th Cir. 1987) (leaked); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1216 (DNM 2018) (avoidance); Thomas v. Fuerst, 345 Ill. App. 3d 929 (2004) (excommunication); Decker ex rel. Decker v. Tschetter Hutterian Brethren, Inc., 1999 SD 62 (excommunication). And while of course this voluntariness is protected by generally applicable laws, such as laws prohibiting assault and battery, false imprisonment, etc., these laws are indeed generally applicable: they do not specifically exempt members from the religious community precisely because they are members of the religious community. .

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