Religious refusals to testify unveiled,
and the rule that deposition testimony may be introduced if the
witness lives more than 100 miles away
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Dec 20 14:55:44 PST 2006
It seems to me that Chris's own example of the secular exemption
that supposedly undermines the substantiality of the interest behind
enforcing the in-person testimony rule -- the provision that witnesses
may testify by deposition, if they are more than 100 miles away from the
hearing -- shows the difficulty of trying to decide how comparable the
current secular exemption is to the contemplated religious exemption.
The rule provides:
(5) Deposition Testimony. Testimony given as a witness in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or,
in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
For purposes of this subsection only, "unavailability of a witness" also
includes situations in which:
(A) The witness is at a greater distance than 100 miles from the place
of trial or hearing, or is out of the United States, unless it appears
that the absence of the witness was procured by the party offering the
deposition; or
(B) On motion and notice, such exceptional circumstances exist as to
make it desirable, in the interests of justice, and with due regard to
the importance of presenting the testimony of witnesses orally in open
court, to allow the deposition to be used.
So the rule itself (A) provides that a party generally may *not*
herself create the situation in which she proceeds with trial by
deposition, and (B) provides an alternative option that might apply even
when the "absence of the witness was procured by the party offering the
deposition," but only in *exceptional* circumstances, to be evaluted
"with due regard to the importance of presenting the testimony of
witnesses orally in open court." That hardly appears like a concession
that "the government's interest in enforcing the law against the
religious observer is insubstantial."
Eugene
________________________________
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher C.
Lund
Sent: Tuesday, December 19, 2006 5:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Transcript in case dismissed because plaintiff
Muslim womanrefused to unveil to testify
Well, let me ask you this: How does RFRA deal with these cases?
With general applicability, we can begin with the rule and the
exceptions therein. The plaintiff can't simply attack the rule -- he
can't simply say the rule serves unimportant interests -- he can only
instead suggest the rule's interests are unimportant by reference to the
exemptions that have already been made to it. That's a bounded inquiry;
RFRA, by contrast, is much more open-ended, and the problem of
incommensurability looms larger. But yet courts handle the line-drawing
problems.
I'd say the key is that, under both RFRA and general
applicability, once a burden on religious exercise is established, we
move away from the mentality of the religious observer (i.e., I am free
to trespass on another's land to protect my property from destruction;
adhering to my religious beliefs is of the same order of magnitude for
me) to a focus on the government (i.e., Does the defense-of-property
exception undermine the general rule regarding private property? Does
it reveal that the government's interest in enforcing the law against
the religious observer is insubstantial?). Now general applicability
is different than RFRA in another way; the burden is shifted, so the
government gets a finger on the scale when the religious adherent is
trying to convince the court that the analogy works. But in cases where
the government is exempting those with modest secular burdens (like, I
would argue, a 100-mile trip to the courthouse), but not religious
burdens that seem strikingly greater (a Muslim women's adherence to
religious command), then I don't think courts are entitled to back down
from general applicability's implications anymore than I think courts
are free to disregard RFRA because it creates difficult line-drawing
problems.
That said, I can't see a general applicability challenge
succeeding on the facts you list below, with maybe two exceptions. I
think it's interesting to rethink the ministerial exception as not an
exception to Smith, but as called for by the interplay between general
applicability and the secular BFOQ exception. That is, if secular
groups can use gender as a BFOQ for hiring in certain crucial positions,
how can the state deny a religious group the right to use gender as a
BFOQ for hiring a minister? I'm also interested in the analogy to fair
use, and whether the secular exception for fair use should maybe open up
the possibility of a religious exemption, but I know nothing about that
and should wait at least until I read Tom Berg's piece on the subject.
All the best,
Chris
________________________________
> Date: Mon, 18 Dec 2006 21:13:20 -0800
> From: VOLOKH at law.ucla.edu
> To: religionlaw at lists.ucla.edu
> Subject: Re: Transcript in case dismissed because plaintiff
Muslim woman refused to unveil to testify
>
> So how would you handle a religious person who feels a
religious
> duty to discriminate based on sex, and analogizes to the BFOQ
exception,
> which lets people discriminate based on sex for privacy
reasons, or for
> artistic verisimilitude reasons? "My right to practice my
religion,"
> he'd say, "is at least as important as someone else's right to
> discriminate based on sex in casting a play." How do you
decide that?
>
> Or say a religious person feels a religious duty not to
testify
> against a parent or a child (as some Jews do), or against a
> coreligionist (as I've heard some claim that some Muslims do).
"My
> right to practice my religion," he'd say, "is at least as
important as
> someone's right not to testify against a spouse, or not to
testify in a
> way that incriminates himself, or not to testify against a
patient.
> Sure, we want to avoid discouraging people from visiting
> psychotherapists; but we should want to at least equally avoid
> discouraging people from violating their felt religious
obligations."
>
> Or say a religious person feels a religious duty to copy
someone
> else's private letters, or to make and sell copies of
another's
> religious work. "My right to practice my religion," he'd say,
"is at
> least as important as the interests embodied in the
sixteen-plus
> exceptions to the Copyright Act."
>
> Or say a religious person feels a religious duty to trespass
on
> someone else's property (for instance, to make a pilgrimage to
a site
> that he sees as holy; assume that the site is on another's
unimproved
> land, not in the property owner's backyard). "My right to
practice my
> religion," he'd say, "should be treated as comparable to any
other
> necessity defense. I am free to trespass on another's land to,
for
> instance, escape a blizzard, or even to protect my property
from
> destruction; I should be equally free to trespass in order to
avoid
> violating my religious beliefs."
>
> How are courts to decide which analogies work and which fail?
> What's the legal test they're supposed to be using?
>
> Eugene
>
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
Christopher C.
> Lund
> Sent: Monday, December 18, 2006 8:27 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Transcript in case dismissed because
> plaintiff Muslim woman refused to unveil to testify
>
>
> The check on all of these is that the religious claimant
> has to analogize his claim for exception to a preexisting
secular
> exception. He or she has to convince the court that the
secular
> exception already harms the rule more than the religious claim
for
> exception would. A religious group arguing for a right to
involuntary
> human sacrifice is going to have a hard time convincing anyone
that
> their claim for an exemption is really like the existing one
for
> self-defense. A religious individual claiming a right to
trespass onto
> other person's land is going to have hard time analogizing his
case to
> the exception for necessity or for the police. In the latter
case, for
> example, the exceptions for necessity and law enforcement are
narrow
> doctrines (necessity requiring a showing of greater harm; the
"fleeing
> felon" doctrine being a narrow exception to the warrant
requirement)
> which create rarely used, individual-specific, and
context-dependent
> exceptions to the general rule. A freestanding religious
exemption
> would be significantly more broad. I think courts are fully
capable of
> drawing lines to differentiate between those cases and our
instant case.
>
> To be sure, I do think this will require courts to
> exercise judgment. They will have to determine what the
concerns are
> behind the rule, evaluate whether the rule is underinclusive
with
> respect to those concerns, and weigh the harm to the rule of
the
> existing secular exceptions against the potential harm of the
religious
> claim for exception. Perhaps to some, this invites courts back
into the
> sort of judicial balancing from which Smith meant to depart.
But I
> think all of this is present in Lukumi and its language about
> underinclusiveness. Lukumi was just too easy of a case to have
all
> these details flushed out.
>
> None of this should be taken as a defense of general
> applicability. I too think it's a poorly calibrated system,
although I
> would also add that I think it severely underprotects
religious
> exercise. But I don't think the sky is going to fall if a
robust
> version of general applicability is adopted.
>
>
> ________________________________
>
>
>
>
>
>
> > Date: Mon, 18 Dec 2006 13:39:29 -0800
> > From: VOLOKH at law.ucla.edu
> > To: religionlaw at lists.ucla.edu
> > Subject: RE: Transcript in case dismissed because
> plaintiff Muslim womanrefused to unveil to testify
> >
> > Would we say that Title VII's ban on sex
> discrimination in
> > employment isn't generally applicable, given that it
> has various
> > exceptions (for small companies, for bona fide
> occupational
> > qualifications, and he past for conduct outside the
> U.S.)? What about
> > statutory rape law -- is that not generally
> applicable, in states that
> > have exceptions for married couples, or for youngsters
> who are close
> > enough in age to each other? What about copyright law,
> which sets forth
> > a presumptive prohibition on copying in section 106,
> and then has (at
> > least) sixteen exceptions in 17 U.S.C. secs. 107
> through 122? What
> > about the general duty to testify, which is riddled
> with exceptions?
> > Murder law, which has exceptions not just for
> self-defense and execution
> > of a lawful sentence, but also for provoked killings
> (which aren't
> > murder even though they are manslaughter)? Trespass
> law, which has
> > exceptions for necessity, government action, adverse
> possession /
> > easements by prescription, and so on? Breach of
> contract law, that has
> > exceptions for unconscionable contracts, contracts
> against public
> > policy, contracts with incompetents, and more
> (especially when we speak
> > specifically of the specific performance remedy for
> breaches of
> > contract)?
> >
> > How many laws are there that *don't* have exceptions
> that embody
> > value judgments that some secular interests justify
> the exception?
> > After Smith and Lukumi, is it really the case that
> exemption requests
> > from all those statutes are constitutionally subject
> to strict scrutiny
> > -- and the demanding form of strict scrutiny applied
> by Lukumi to
> > non-generally-applicable laws, complete with
> underinclusiveness
> > analysis, rather than just the weak strict scrutiny
> applied in Lee, Bob
> > Jones, and other Yoder-to-Smith cases?
> >
> > Eugene
> >
> >
> > ________________________________
> >
> > From: religionlaw-bounces at lists.ucla.edu
> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf
> Of Christopher C.
> > Lund
> > Sent: Monday, December 18, 2006 1:31 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Transcript in case dismissed because
> plaintiff
> > Muslim womanrefused to unveil to testify
> >
> >
> > I think there is a real question as to whether the
> rule here is
> > generally applicable. By allowing a witness who is
> more than 100 miles
> > away to testify by written deposition, Michigan has
> made a value
> > judgment -- whatever the value of demeanor evidence,
> it is not worth
> > forcing witnesses to travel more than 100 miles to the
> courthouse. The
> > burden of a two-hour drive is enough for Michigan to
> relax its
> > insistence on demeanor evidence; the burden of a
> religious commandment
> > is not.
> >
> > Now courts may simply take the rule and the exception
> as the
> > government frames them (the rule is a rule about
> decorum or dress, and
> > not really about demeanor), rather than looking at the
> stated concerns
> > behind the rule and the rule's potential
> underinclusiveness in
> > responding to those concerns. But I think that's a
> mistake, and a poor
> > reading of Lukumi.
> >
________________________________
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