There has been quite a lot of attention the past few days about a decision from a district court in Utah, which exempted a member of a polygamous sect from testifying in a child labor case based on RFRA. All of the headlines explain that this is a dangerous exemption of Hobby Lobby.
Yet, according to an order signed by Judge David Sam, a Reagan appointee to a trial court in Utah, the federal officials investigating this alleged violation of child labor laws will not be able to require an FLDS member named Vernon Steed to provide information that could aid the investigation because Steed objects to giving certain testimony on religious grounds. Steed claims that he’s made “religious vows ‘not to discuss matters related to the internal affairs or organization of the Fundamentalist Church of Jesus Christ of Latter-day Saints.’” According to Judge Sam’s opinion, that’s enough to exempt him from providing the testimony he does not want to give.
I would encourage you to first read the opinion. It’s short. Really short. In fact, the key RFRA analysis is only one paragraph, and really two sentences. And it is completely conclusory.
As noted, under RFRA the government may not substantially burden a person’s exercise of religion unless it can demonstrate that the burden in furtherance of a compelling governmental interest, and it is the least restrictive means of advancing a compelling interest. Here, the matter quickly is resolved by skipping directly to the least restrictive means requirement. Petitioner has failed to show that forcing Mr. Steed to answer the questions offensive to his sincerely held religious beliefs is the least restrictive means to advance any compelling interest it may have. For example,as a less restrictive alternative, Petitioner can continue with its efforts to obtain needed information from Paragon Contractors Corporation, Brian Jessop, Dale Barlow and others who contracted to manage the pecan ranch. See Hobby Lobby, 134 S.Ct. at *2780 (“The least-restrictive- means standard is exceptionally demanding…” and is not satisfied where the party imposing the burden “has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y]…”).
This seems so wrong. Testimony is personal. A witness testifies about what he or she witnessed. There is no other way to get a person’s testimony than to have that person testify! This isn’t like Hobby Lobby, where someone else can pay for the same contraceptive. Pills are fungible. Testimony is not. This should be easily reversed.
I’m sure there will be outlier opinions that cite Hobby Lobby–as the latest explication of RFRA (nothing to do with corporations)–but this opinion does not mean the sky is falling.