Rabbi Jailed for Refusing to Testify Against Co-Religionists

1. So reports the L.A. Times:

An orthodox rabbi [Moshe Zigelman] who refused to testify before a federal grand jury, saying his religious beliefs prohibit informing on fellow Jews, was ordered jailed Friday by a District Court judge for contempt of court … [u]ntil he chooses to testify ….

Zigelman has previously pleaded guilty and served a prison sentence for his role in a tax-evasion scheme by his Brooklyn-based orthodox sect, Spinka. After his release, he was subpoenaed to testify before a Los Angeles grand jury continuing its probe into the scheme….

As Prof. Howard Friedman (Religion Clause) notes, there is a split of views among Jews on the doctrine to which the rabbi is referring, “mesira.” The position that Jews should not testify against other Jews, at least as to not very serious offenses, is indeed apparently held by some observant Jews, but by no means all.

2. Of course, under the Free Exercise Clause as interpreted by Employment Division v. Smith (1990), any such 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 [UPDATE: a prominent Conservative, not Orthodox, 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.

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