The Free Exercise Clause was enacted for the purpose of protecting diverse modes of religious practice. One practice that numerous religious traditions observe is shunning—the expulsion and social exclusion of noncompliant individuals from a religious community. Yet because shunning usually involves concomitant harm to religious congregants, plaintiffs often bring religious-tort claims against religious entities for the injuries they suffer. This implicates free-exercise concerns for both the plaintiff and the religious-entity defendant. Despite the utmost importance of religious freedom in American jurisprudence, courts analyze religious-tort claims in widely disparate ways. And they typically rely on consent and membership as the basis for judicial decisionmaking.
But these analytical lenses are flimsy and lead to unpredictable outcomes. At times, they are underprotective of religious plaintiffs; at others, they penalize religious entities and chill religious practices. In order to clarify a muddled sphere of free-exercise jurisprudence, courts should adopt a contract paradigm for analyzing shunning claims. A contract paradigm would lead to cleaner results and would uphold the integrity of religious institutions, which are necessary for religious individuals to thrive.
Austin J. Rogers, East of Eden: A Contractual Lens for an Unsettled Area of First Amendment Shunning Jurisprudence, 68 Duke L.J. 1277 (2019)
Available at: https://scholarship.law.duke.edu/dlj/vol68/iss6/5