Pastor Jailed for Refusing to Testify Against Co-Religionist

1. So reports the Rutland Herald:

A pastor was taken back to jail Thursday for continuing to refuse to tell a [federal] grand jury what he knows about a woman who fled the country to escape a custody dispute with her former lesbian partner….

Miller told the judge that the week he has spent in jail has strengthened his resolve that his beliefs require him to follow God’s law when they conflict with civil law. He said he is willing to pay the price, even if it means more time in jail.

“If I were to bring testimony against a fellow member of Christ’s kingdom, for honoring Christ’s kingdom’s laws, I would be disloyal to his kingdom and to Christ,” Miller said.

Miller has refused to testify about another man involved in the 2009 flight of Lisa Miller and her daughter, Isabella, rather than allow the girl to spend time with Lisa Miller’s ex-partner. The Millers are not related.

2. Of course, under the Free Exercise Clause as interpreted by Employment Division v. Smith (1990), the pastor’s religious belief would likely be constitutionally irrelevant — the duty to testify would likely be viewed as a generally religion-neutral law of general applicability, and even sincere religious objectors would not be entitled to a constitutional exemption. (I generally think this is the right approach.) There are some possible counterarguments: One might argue that the law is not generally applicable because the duty to testify includes a religious exemption for clergy (of any denomination) who refuse to testify about confidential communications that they feel religiously obligated to keep confidential. One might also argue that this case involves a “hybrid rights” claim, involving a supposed combination of a Free Exercise Clause claim and a freedom-from-compelled-speech claim.

But on balance I think these counterarguments are weak, and I suspect that courts would find no serious Free Exercise Clause issue here.

3. The federal Religious Freedom Restoration Act does create a statutory presumptive right to religious exemptions from federal laws. If a law — such as the duty to testify — substantially burdens religious practice, for instance by requiring someone to do something that he sincerely thinks is religiously forbidden, then the objector is presumptively entitled to an exemption. To rebut this presumption, the government would have to show that denying the exemption “passes strict scrutiny,” i.e., is the least restrictive means of serving a compelling government interest.

Yet I suspect that courts, if confronted with a RFRA claim in such a case, would conclude that strict scrutiny can be satisfied here. The interest in getting information for a criminal investigation would be seen as compelling. And while in some journalist privilege cases under the Free Press Clause, some circuit courts have held that strict scrutiny isn’t satisfied when the evidence can be gotten from other sources, I doubt that the courts will so rule here. First, giving any such exemption would be too likely to undermine confidence in the legal system (to the extent that religious people of certain groups are seen as being able to shield their coreligionists). Second, giving any such exemption and to lead to many more such exemption requests, whether sincere or not, since the exemption would be so tempting to many people who don’t want to testify. The case of United States v. Lee (1982), in which the Court held that evenhanded application of tax laws, with no tolerance for individualized religious exemption requests, passes strict scrutiny, seems to me quite on point here.

4. Interestingly, there is some caselaw on another kind of claim of a religious exemption from a duty to testify: Some Jews and at least one Mormon have argued that they are religiously obligated not to testify against their family members. One district court has held in favor of such a religious exemption claim, but two circuit courts have rejected them. Compare In re The Grand Jury Empaneling of the Special Grand Jury (3d Cir. 1999) (holding that the Free Exercise Clause didn’t allow a religiously motivated refusal to testify against a family member, at least in this case), and In re Doe (10th Cir. 1988) (same), with In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D. Conn. 1982) (holding the opposite), and In re The Grand Jury Empaneling (McKee, J., dissenting) (same). Cf. Grossberg’s Parents Ask to Keep Talks Confidential, Newark Star-Ledger, Nov. 26, 1997, at 43 (“The parents of Amy Grossberg, the college student accused of killing her newborn in Delaware … argued in court papers that talks with their daughter should be kept secret and that it is a violation of their right to the free exercise of religion [for prosecutors] to force them to divulge information. Rabbi Joel Roth, a legal expert at the Jewish Theological Seminary [a prominent Conservative institution] in New York City, confirmed yesterday he wrote an affidavit for the Grossbergs, stating that ‘under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding.’”). But I think the much broader claim of a right not to testify against coreligionists in a wide range of cases would be seen by courts as even less palatable.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.