Monthly Archives: September 2014

Code of Silence: RFRA Protects Religious Refusal To Testify

omerta
Image c/o The Penultimate Word

One of the problems with the Supreme Court’s interpretation of RFRA in Burwell v. Hobby Lobby Stores is that it allowed for such a capacious interpretation of the statute’s standards that it was inevitable that the opinion would be taken to stand for much broader principles than those at issue in the actual controversy it decided. Now, a few months later, we can see the fruits of that interpretation beginning to ripen – and even to rot.

Most recently, earlier this week, a federal district court in Utah released an opinion in the case of a fundamentalist Mormon who had been subpoenaed by US Department of Labor as part of an investigation into whether the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) had violated child labor laws by illegally using child labor during a pecan harvest at a ranch in Utah. The defendant refused to answer the questions asked of him on the grounds that disclosing any information about the inner workings, authorities, or structure of the FLDS church violated his free exercise rights. The court held that it would not question the assertion that “the identity of FLDS Church leaders, the organization of the FLDS Church, and its internal affairs are sacred matters, designated so by God, and that he has vowed or covenanted not to discuss sacred matters.” Note, we’re not talking about disclosure of doctrine or sacred rituals. We’re talking about factual answers to factual questions, like “who is in charge of your church?”

This is a striking ruling. If a religious believer can claim a free exercise right not to answer questions about his religious institution, including who leads it, government attempts to investigate wrongdoing by religious sects or institutions could be completely stymied. Assessing responsibility for illegal actions will often require knowing who in an organization has the power to make decisions, set policy, or give orders, and who is in turn responsible for carrying them out. If members of the religious organization can choose not to answer such questions, investigators will be faced with a religious version of the infamous blue code of silence.

The court’s interpretation of the narrow tailoring test does not offer much solace either. The court held that the government’s attempt to enforce the subpoena was not narrowly tailored because the government could try to get the information from other sources (which it seems, from the opinion, it had already attempted to do, unsuccessfully). Would this mean that the government could be compelled to attempt to obtain information about a religious institution from every single member, one by one, until they found one who did not invoke the free exercise clause in order to refuse to answer the questions? That sounds absurd, but at what point would this court have found that the government had no other least restrictive alternative than enforcing the subpoena? How does this numbers game work?

I don’t have the answers to these questions, but I think they are important ones. To the extent that any sincerely held religious belief is coming to stand in for the notion of “free exercise,” we are going to see a drastic expansion of the kind of activities (like providing factual information about who heads a church) that are designated free exercise, and to the extent that the narrow tailoring inquiry operates at a hypothetical level that does not take practical considerations into account, we are going to see fewer and fewer situations in which the government can vindicate its interests in the face of a RFRA objection.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.