3rd Cir rejects religious privilege not to testify against parent

[Volokh, Eugene]

        [I give a somewhat lengthy discussion, with two questions at the
end re: our underinclusiveness discussion:]




        In re The Grand Jury Empaneling of the Special Grand Jury, 1999
WL 150880 (3rd Cir. Mar. 19), http://laws.findlaw.com/3rd/992098P.html:
The government subpoenaed an Orthodox rabbi's three daughters to testify
before a federal grand jury investigating alleged fraud committed by the
rabbi.  The daughters had been the rabbi's employees.  The witnesses
argued that their religion prohibited them from testifying against their
father.

        The court (Sloviter, J., joined by Rendell, J.) concluded:

        (1)  There is no need to decide whether RFRA is valid as to
federal actions.

        (2)  "We need not decide in this case whether the government's
interest in investigating and prosecuting crime is always compelling
under RFRA because we are convinced that the government's interest in
securing the evidence needed to punish the criminal activity alleged
here is compelling. The District Court correctly recognized that the
duty to prosecute persons who commit
serious crimes is part and parcel of the government's 'paramount
responsibility for the general safety and welfare of all its
citizens.' App. at 61. Grand jury proceedings play an essential role in
the government's ability to fulfill this duty. A review of the
Schofield affidavit confirms both that the crimes that this grand jury
is investigating are weighty and that these witnesses are
likely to possess substantial relevant information. The dissent makes
much of the fact that '[t]his is not a situation involving
violence or disruption of public safety.' Although it is true that this
case does not concern crimes of extreme violence, such as
those at issue in Port and Smilow, the crimes alleged here, like many
white collar crimes, may seriously impact the public
welfare. We therefore conclude that enforcing these subpoenas would
serve a compelling state interest."

        (3)  Enforcing the subpoenas is the least restrictive means of
serving the interest, despite the witnesses' contention that "the
government can secure similar evidence from other sources."  "After
reviewing the government's submission ourselves, we reach the same
conclusion. There is substantial reason to believe that the witnesses
possess relevant information necessary for the prosecution of serious
crimes. Their role as employees of the target of the investigation
suggests that they are uniquely situated to have first-hand knowledge of
the target's past business conduct. Moreover, the witnesses have
submitted no evidence beyond their own self-serving allegations to
contradict that suggestion or to establish that the government can
conveniently obtain comparable information from other sources."

        The dissent (McKee, J.) argued that "This is not a situation
involving violence or disruption or a threat to public safety. Indeed,
it does not even appear that the alleged crimes are continuing. Rather,
it is an investigation into past conduct. The majority asserts that
'[t]he District Court correctly recognized that the duty to prosecute
persons who commit serious crimes is part and parcel of the government's
'paramount responsibility for the general safety and welfare of all its
citizens.' ' See Maj. Op. at 9-10. But the record simply does not
establish that the 'general safety and welfare' of the citizenry is
implicated here."  Moreover, because "the witnesses argue that the
government has failed to establish that similarly probative information
cannot be obtained
elsewhere, either from other witnesses or through documentary evidence,
without burdening their religious beliefs," the district court should
have looked more closely at whether this was indeed so.


        Two questions for those who adhere to the view that the secular
exceptions to a law may make it not generally applicable, even if the
law doesn't seem to intentionally single out religious behavior for
especially bad treatment (a la Lukumi Babalu Aye):

        (1)  Is the duty to testify, riddled as it is with exceptions in
the form of the various privileges, a law that is not generally
applicable, and thus subject to strict scrutiny even in state courts, in
the absence of a RFRA?

        (2)  The court of appeals' "least restrictive means" inquiry did
not include the underinclusiveness inquiry that's part of strict
scrutiny in free speech cases and equal protection cases.  Should it
have?  If so, wouldn't an exemption be constitutionally compelled, given
the existence of various privileges, such as attorney-client,
psychotherapist-patient, doctor-patient, marital confidential
communications, spousal refusal to testify, trade secret, official
secret, and some others in some jurisdictions?  (I exclude the privilege
against self-incrimination, for which there's a simple explanation --
the U.S. Constitution -- for the underinclusiveness; the same may be
true for the attorney-client privilege in criminal cases when the
privilege is claimed by a potential criminal defendant.)




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Eugene Volokh, UCLA Law School, 405 Hilgard Ave., L.A., CA 90095