Jehovah’s Witnesses in Norway: Why the Oslo District Court Decision Is Wrong
On March 4, 2024, the Oslo District Court ruled against the Jehovah’s Witnesses and upheld the decisions of the government and the State Administrator of Oslo and Viken who denied the Jehovah’s Witnesses the state subsidies they had peacefully received for thirty years based on Section 16 of the Norwegian Constitution (“All religious and philosophical communities must be supported on an equal footing”). Registration as a religious organization of the Norwegian Jehovah’s Witnesses under Law No. 31 of April 24, 2020, was also denied.The District Court is aware that this was a difficult decision with serious consequences. It observes that at least, under Law No. 31 the lack of registration would not prevent the Norwegian Jehovah’s Witnesses to continue their activities and to teach what they teach everywhere in the world (except in a few totalitarian countries that have banned them, including Russia). The consequences of the non-registration are that they will not be eligible for state subsidies, nor will they be able to celebrate legally valid marriages.
State subsidies in Norway are not a gift. Since the Church of Norway, a Lutheran denomination, is a state church supported by the government with transfers of money proportional to the number of its members, the Constitution mandates that to respect the principle of equality other religions should receive the same proportional subsidies. The judge himself acknowledges that not being able to celebrate legal marriages within one’s religious community may be perceived as discriminatory. He also agrees that the decision may have a broader “stigmatizing effect.”Yet, the judge believes that all these admittedly important factors “are not weighty enough” when compared to the fact that the Jehovah’s Witnesses, by practicing shunning, violate in his opinion their members’ freedom to change their religion. Shunning is the Jehovah’s Witnesses’ teaching recommending that members do not associate with those who have been disassociated as unrepentant of serious sins or have publicly disassociated themselves from the organization (as opposed to simply becoming inactive). Cohabiting relatives are not shunned, although they are excluded from the family’s religious activities.Here, I find the decision slightly confusing. At times, it seems that the judge regards the shunning both of adult and minor ex-members as grounds for his decision. In other passages, however, he seems to acknowledge that Law no. 31 includes a note that “if adult members of their own free will follow rules that restrict their rights and freedoms, they cannot be considered violations… Essentially, this also applies even if the obligations can be considered harmful.” In its conclusion, the decision cautiously focuses on the alleged violation of the “right to opt out” of children.The decision notes that the European Convention on Human Rights also guarantees the right to leave a religious organization. The judge is persuaded that Jehovah’s Witnesses in practice are prevented from leaving since they know that, if they leave, they will be shunned.
As mentioned earlier, it is at times unclear whether in the end the objection only concerns the shunning of minors or also extends to adults. In the second case, the decision is patently absurd and runs counter to dozens of decisions on shunning by jurisdictions in other countries, including supreme courts. They have noted that religious organizations have the right to self-organize themselves as they deem fit. Christian groups also have the right to interpret the Bible in their own way. The interpretation by the Jehovah’s Witnesses in this case is not even particularly original. Clearly, something similar to the shunning they practice today is taught in 1 Corinthians 5:13 (“Expel the wicked person from among you”) and 5:11 (“Do not even eat with such people”), and 2 John 10–11 (“Do not take them into your house or welcome them. Anyone who welcomes them shares in their wicked work”). Others may suggest a non-literal interpretation of these passages, but it is not for secular courts of law to second-guess religious organizations on their interpretation of the Bible.The main objection is, however, another. All human organizations have what sociologists call exit costs. By leaving a demanding but well-paid job I may gain more freedom but lose a good salary. The loss of the salary is my exit cost. Shunning is a typical exit cost. A spouse that decides unilaterally to divorce and to marry a different partner may be shunned by the abandoned ex-spouse, perhaps even by children. Members of a political party who quit and join a political organization with the opposite ideology may be shunned as traitors by their former comrades. Several religions, including Islam and branches of ultra-orthodox Judaism, treat “apostates” in a less charitable way than the Jehovah’s Witnesses.The Norwegian judge’s argument is that to avoid the exit costs we are compelled to remain in a religious organization we may no longer believe in and are thus denied our right to leave it that is enshrined in the European Convention on Human Rights. But by applying the same argument, one can argue that marriage or political parties are also institutions that violate the rights of those who want to divorce or change political affiliation, since the exit costs may make them reluctant to leave.Sociologists know that eliminating exit costs is not possible. They are an unavoidable feature of organized social life. Sometimes, one has the impression that the enemies of the Jehovah’s Witnesses are precisely asking courts of law to compel those who do not want to communicate with their former co-religionists to do it, which is not only unfair but impossible. More often, opponents argue that what they want is that judges would prevent the organization of the Jehovah’s Witnesses from teaching shunning. But that would put the judges in the strange position of interpreting 1 Corinthians and 2 John and substitute their opinion to the one of a religious organization in determining what these venerable Biblical texts “really” mean.In the end, the Oslo judge found it safer to focus on minors who are first baptized and then, if they become unrepentant sinners, shunned. One can measure the cultural distance of the judge’s own feelings from those of any conservative religious group, not only the Jehovah’s Witnesses, when he wrote that he finds it “reasonable to expect” that most minors would engage in “sexual relations with their boyfriends or girlfriends.” Apart from the cultural problems of the judge in understanding conservative religion, he accepts the opinion of an “apostate” ex-member that minors are baptized and become Jehovah’s Witnesses when they are not mature enough to understand their obligations. But surely this is a drastic conclusion one cannot arrive at on the basis of one witness or a few anecdotical examples. What would be required is a quantitative study of those baptized as minors. Nothing similar is quoted in the decision. Although Norway has introduced a system of “youth punishment” with more lenient penalties for them, minors can be tried from criminal offenses from age 15. If they are mature enough in Norway to stand a trial before a criminal court, perhaps they are also mature enough to make informed religious decisions.Once they have been baptized, minors run the risk of being shunned. Again, some opponents may have told the judge that this is not rare but among his numerous witnesses he found only one woman, now 40, who was disfellowshipped for a sexual offense and shunned as a minor, when she was 14, thus 26 years ago. She testifies that after a “short time” she was allowed to return to the fold by writing a “letter of regret” and attending a “short meeting.” There is simply no evidence that disfellowshipping minors, with the consequence that they are shunned (but not by cohabiting relatives), is more than a rare occurrence.It may be objected that a rare injustice would be an injustice, nonetheless. The answer is that, as the European Court of Human Rights (ECHR) stated in cases about the dissolution of organizations of the Jehovah’s Witnesses in Russia in 2010 (Jehovah’s Witnesses of Moscow and Others v. Russia) and 2022 (Taganrog LRO and Others v. Russia), denial or cancellation of registration of a religious organization is a serious measure with dramatic consequences for its members that states can adopt only in case of frequent and obvious crimes or misdemeanors. Shunning minors is not frequent, and the “principle of proportionality” between the fact and the sanction mentioned by the ECHR in its decisions about Russia would not be respected even if this was a crime.
But is it a crime? The judge himself admits that Jehovah’s Witnesses, in good faith, perceive shunning as a “loving and meaningful arrangement,” a painful medicine (painful, it should be added, for those who shun and not only for those who are shunned) that in many cases helps restoring family harmony and morality, as those shunned end up understanding their mistakes and repenting.According to the decision, the violation of the UN Convention on the Rights of the Child would be in the fact that to minors, just as to adults, would be denied the freedom to “opt out” of the organization. Afraid of being shunned, minors who would want to quit in the end are dissuaded from leaving the Jehovah’s Witnesses, which the judge thinks violates their right to change their religious affiliations. However, if the minors are mature enough to understand their obligations when they are baptized—and no evidence has been offered that this is not the case—they are aware of the exit costs just as the adults are. It is also false that a young boy or girl does not have experience of exit costs: he may decide to break a relation with a boyfriend or a girlfriend, quit a group of friends, leave a sport club, in extreme cases even leave the family and go live elsewhere. All these experiences have painful exit costs.The decision argues that, because youth are especially fragile, the experience of shunning is more traumatic for them. This is possible, but youths also have greater flexibility in socialization than adults. Young Jehovah’s Witnesses attend public schools, where after disfellowshipping they can continue to attend or newly enter into circles of friends who are not part of their former religion. The judge insists on the pain of not being able to communicate with grandparents who are Jehovah’s Witnesses. However, grandparents may cut ties with their children and grandchildren for a variety of reasons, none of which courts of law can really correct. And even outside the Jehovah’s Witnesses, minors who do something that is perceived by their relatives as a betrayal of the family or an expression of moral corruption may find themselves, for all practical purposes, “shunned.”It is difficult to disagree with professor of religious history, Dag Øistein Endsjø, who told the leading Norwegian Christian daily newspaper “Vårt Land” that the verdict is against numerous decisions rendered in other countries, as well as against the case law of the European Court of Human Rights where it would have limited chances to survive. It is also against simple logic. Perhaps a higher Norwegian court will acknowledge it even before the court in Strasbourg.
