A wrong decision denying state subsidies and registration to the organization because of its policy towards excluded ex-members has been overturned in appeal.
March 19, 2025
“Jehovah’s Witnesses have been fully vindicated in that the decisions to refuse grants and registration are invalid.” This is the conclusion (p. 34) of the Court of Appeal of Borgarting, which on March 14, 2025 reversed the decision of the Oslo District Court of March 24, 2024. We explained in “Bitter Winter” why the latter decision was wrong, dangerous for religious liberty, and inconsistent with the international obligations of Norway under UN and European conventions. The Court of Appeal came to the same conclusions.
The case started, the Court of Appeal notes, in 2021 when “the Ministry of Children and Family Affair received a letter from Rolf Johan Furuli, a former member of the Jehovah’s Witnesses” (p. 3). The complaint was about the Jehovah’s Witnesses’ practice of counseling members not to associate with ex-members (except cohabiting relatives) who had been expelled as guilty and unrepentant of serious sins or had publicly disassociated themselves from the organization. It was alleged that the Jehovah’s Witnesses thus violate the right of their members to change their religious beliefs, since the fear compels members who would like to leave to remain in the organization. Furuli also stated that the same practice applies to “children” (meaning minors) who are allegedly baptized before “they are mentally mature enough to fully understand what they are doing” (p. 3).
Eventually, this led to decisions of the government and the State Administrator of Oslo and Viken to deny 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.
These administrative decisions were confirmed by the Oslo District Court on March 24, 2024. The Jehovah’s Witnesses appealed. The Centre for Law and Religious Freedom at Jagiellonian University in Krakow, the Religious Freedom Clinic at Harvard Law School, and the Norwegian Helsinki Committee sent letters supporting the position of the Jehovah’s Witnesses, which were accepted to “form part of the basis for the decision in the case” (p. 5).
The Court of Appeal first examines the practice it prefers to call “social distancing” from ex-members who have been expelled or have publicly disassociated themselves from the Jehovah’s Witnesses. It states that it will mostly rely on published literature of the Jehovah’s Witnesses, and that the testimonies it heard persuaded the court that what happens in practice “is essentially in line with what is described in Jehovah’s Witnesses’ written material.”
There is no disagreement between the parties, the court notes, on the fact that the Jehovah’s Witnesses teach “social distancing” on the basis of their interpretation of the Bible, particularly of 1 Corinthians 5:13 (“Expel the wicked person from among you”) and 5:11 (“Do not even eat with such people”). This “exclusion” does not apply to members who simply become inactive without publicly announcing that they have left the Jehovah’s Witnesses.
Additionally, as the Court of Appeals summarizes from Jehovah’s Witnesses’ literature, in fact “‘family ties’ are not broken by withdrawal or exclusion. This is reflected in two exceptions in particular to the general rule of avoiding contact. Firstly, baptized members will still be able to have normal day-to-day contact with withdrawn or excluded members who live in the same householdas the member, even though the spiritual fellowship will cease. Secondly, baptized members will be able to have contact with excluded or withdrawn family members with whom they do not live in connection with what is referred to… as ‘necessary family matters.’” For example, “If excluded parents become ill or are no longer able to care for themselves financially or physically, children who are Jehovah’s Witnesses will have the biblical and moral duty to help them. Likewise, if an excluded [non-cohabiting] child is not well physically or emotionally, parents who are Jehovah’s Witnesses will care for him” (p. 17).
Members who do not respect the exclusion policy might be subject to religious discipline, but “only if there is ‘persistent spiritual contact or persistent open criticism of the decision to exclude’” (p. 18).
As for minors, “most people who grow up in families where the parents are Jehovah’s Witnesses are baptized around the age of 15–18” (p. 14). Just one individual testified that she was baptized at age 11, but this was decades ago. There are also children of Jehovah’s Witnesses who freely decide not to join the organization. “Based on the evidence,” the Court of Appeal noted, “such a choice will not prevent normal contact with their family and other members of Jehovah’s Witnesses” (p. 14–5).
The Court of Appeal also noted that before being baptized, minors can participate in the preaching work as “unbaptized preachers” if the elders decide they are mature enough. “It is not unusual to become an unbaptized preacher at the age of 11–15” (p. 14). Unbaptized preachers can also be excluded if they are unrepentant of serious sins. The consequences are less severe than in the case of baptized members. Excluded unbaptized preachers are prevented from preaching or speaking in congregational meetings. “Caution” is recommended in associating with them, but according to several witnesses (although others disagreed) in practice this suggestion “is of little consequence” (p. 19).
The Court of Appeal examined separately the two grounds the state mentioned for withdrawal of subsidies and denial of registration: first, that the consequences of exclusion violate the right to freely leave a religious organization; and second, that trying minors who have committed serious sins and subjecting them to social distancing violate children’s rights.
The Court of Appeal states that Jehovah’s Witnesses do comply with Section 2 of the Norwegian Religious Communities Act, as leaving the organization can be done by sending a simple written request. It also notes that during the works of the Stålsett Committee that prepared the Act, it was explicitly “not recommended” to include “social ostracism” of ex-members among the criteria justifying the refusal of state subsidies (p. 21). But in the case of the Jehovah’s Witnesses there is not even a “full social ostracism,” the appeal judges note. Cohabiting relatives are not subject to “social distancing,” and contacts for “necessary family matters” are preserved. In addition, “those who have withdrawn will also be able to have normal contact with family members who are not baptized Jehovah’s Witnesses (including siblings who have chosen not to be baptized), and other networks outside Jehovah’s Witnesses” (p. 23). The Court of Appeal concluded that “there is therefore no question of ‘full social ostracism and/or serious financial consequences’ in the event of withdrawal, which was the situation the Stålsett Committee considered regulating that could provide grounds for refusing subsidies. As mentioned, the Committee [in the end] concluded that it was not appropriate to regulate this by law” (p. 23).
Obviously, leaving the Jehovah’s Witnesses includes unpleasant consequences but this is true for many religious organizations and the “consequences do not entail sufficient undue pressure to violate the member’s right to free withdrawal under Article 9(1) of the ECHR [European Convention on Human Rights] or other human rights obligations or the Norwegian Constitution” (p. 22). The Court of Appeal also “emphasizes, among other things, that the social consequences of opting out—which can undoubtedly be very difficult for many—are set out in the Jehovah’s Witnesses’ rules and are something that the members are familiar with, both those who opt out and the remaining members. It is thus not a new and unknown ‘sanction’ that is implemented” (p. 22).
In case of minors who are either baptized or unbaptized preachers, the State argued that subjecting them to proceedings before a judicial committee and excluding them, with the consequences of “social distancing,” can constitute “psychological violence” and “negative social control” under Article 19 of the Convention on the Rights of the Child and Section 30 of the Norwegian Children Act, thus justifying the denial of subsidies and registration. The Court of Appeal cautions that its conclusions are “subject to doubt,” a point on which opponents of the Jehovah’s Witnesses have insisted. In reading the decision, it is however clear that “doubts” mostly derive from the fact that concepts such as “negative social control do not have a clearly defined content in Norwegian law” (p. 30).
As for “psychological violence,” a recognition of both international and Norwegian case law shows that it should normally involve “a pattern of abusive acts or behavior that is repeated or persists over time” (p. 26). Meeting a committee of elders may be perceived as “unpleasant and humiliating” by minors (p. 26), although their parents will accompany them “which will usually make the conversation less stressful, at least to some extent,” and the rules of the Jehovah’s Witnesses require “that the conversation with the elders will be as gentle and less detailed as possible” (p, 27). Additionally, just as adults, minors become “familiar with… the consequences of violating the norms” before being baptized (p. 27). At any rate, the court concludes, the meeting with the elders “will normally take place over a relatively short period of time leading up to a possible exclusion. That meeting cannot therefore be said to constitute a ‘pattern of offensive acts or behavior that is repeated or persists over time’.. it does not have the character of psychological ‘abuse’” (p. 27).
Nor is “social distancing” of minors a case of psychological violence either. “it follows from Jehovah’s Witness rules that family ties are not broken by exclusion. For children who live at home, as the vast majority of minors do, this means that the family’s everyday activities continue. The minor’s emotional and physical needs will therefore continue to be met by the parents, and the child will be able to socialize with the other family members in the household… If a minor child does not live at home, parents will have a duty to take care of an excluded child who is not well physically or emotionally… The fact that some parents may act more harshly towards a child who is excluded or withdrawn than the Jehovah’s Witness rules allow, for example by freezing the child out socially at home or requiring the child to move out, is not something that Jehovah’s Witnesses as a religious community encourage; on the contrary” (p. 28).
As for the elusive “negative social control,” the vagueness of the concept implies a high threshold for proving that it exists in a religious organization. In this case, any consideration of possible infringement of children’s rights should be “balanced against children’s and parent’s freedom of religion or belief” (p. 32). Sections 2 and 3 of the Norwegian Religious Communities Act regard minors who have reached the age of 15 as mature enough to join a religious community and acknowledge that there may be some under the age of 15 who are capable to “forming their own opinions” and have the right to participate in religious activities (p. 32). Accordingly, minors have the right to be baptized as Jehovah’s Witnesses. They also have the right not to be baptized even if their parents are Jehovah’s Witnesses, and in fact “this is not entirely unusual” (p. 32) and does not lead to exclusion policies be applied against them.
Obviously, “social control is present in all families and organizations, including religious communities” (p. 31). However, “there is no evidence that baptized minors who grow up in Jehovah’s Witnesses have greater psychological challenges than others in the population” (p. 32). Therefore, “the Court of Appeal has concluded that the practice of social distancing towards underage baptized members does not ‘violate children’s rights,’ as it has not been proven that this practice exposes children to psychological violence and/or negative social control aimed at children” (p. 34).
As for minors who are unbaptized preachers, it would be enough to apply the same comments to them to exclude any violation of children’s rights. Nonetheless, the appeal judges note that “Although many underage unbaptized preachers, on the one hand, will often be younger than baptized minors, and thus often more vulnerable, on the other hand, an unbaptized preacher will not be excluded and thus not be avoided by other Jehovah’s Witnesses in the same way as underage baptized Jehovah’s Witnesses who are excluded” (p. 34).
As Jehovah’s Witnesses were successful on all points in their appeal, they were awarded legal costs in the amount of NOK 8.5 million (US $796,000). As the leading Norwegian Christian newspaper “Dagen” commented on March 14, it was a “devastating judgement” in which the arguments used by the government against the Jehovah’s Witnesses were “dismantled.”
The ruling (which the State can appeal at the Supreme Court) is in line with decisions rendered in several democratic countries, as well as by the European Court of Human Rights, about the exclusion policy of the Jehovah’s Witnesses. It may constitute an important precedent for other countries unwisely considering to act against the Jehovah’s Witnesses because of their exclusion policy, which is clearly protected by international provisions on freedom of religion or belief.
Source: bitterwinter.org
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