Refusing to Testify Against Your Church


The Crime Report‘s readers may have heard about Perez v. Paragon Contractors. It's a recent case from Utah, in which a federal judge ruled that a member of a fundamentalist Mormon church could not be compelled to testify about the church's alleged illegal use of child labor on its farms.

Why? The guy said it was against his religion to talk about “church matters” with non-Mormons.

I think the decision was wrong. Badly wrong. And most of the commentary on it—on both sides—has been superficial, and naive about criminal investigation.

So I'd like to offer three things, today, and tomorrow: Today, a little background on the investigation and the constitutional issues in play; and tomorrow, some prosecutorial perspective about this investigation and criminal investigations generally.

First, what happened in Paragon? It's an investigation by the U.S. Department of Labor, which is authorized by Congress to investigate violations of labor law. The department is investigating allegations that the Fundamentalist Church of Jesus Christ of Latter Day Saints (which, like the court, I'll call the “FLDS Church”) was using child labor on its farms.

Many federal criminal probes begin with an investigation by a federal department other than the Department of Justice. If the department uncovers violations of criminal law, it can refer a case to the U.S. Attorney's office. When I was a prosecutor, I took in cases from EPA, Health and Human Services, Labor, Commerce, you name it.

For those with Pacer accounts, you can read all the pleadings: it's D-Utah, No. 2:13-cv-281. For the rest of you, The Crime Report is hosting the principal briefs.

The FLDS Church is an offshoot of the mainstream Mormon Church. It believes its version of Mormonism is truer to the church's roots. By most accounts, it has thousands of adherents, who live in secluded compounds in rural Utah and Arizona. There have been numerous allegations of child abuse, sexual assault and child abandonment (exiling teenage boys to remove potential sexual competitors) in these compounds.

You've probably heard of FLDS in connection with sexual assault prosecutions against its leadership. Warren Jeffs, one of those leaders, is currently doing time in a Texas prison for sexual assault. Jeffs is at the center of the Paragon investigation: the government charges that Jeffs, from prison, is directing the operations of the FLDS's various businesses, and ordering the use of child labor.

The Department of Labor obtained video, taken by CNN, of “very young children” working in FLDS pecan fields at noon on a school day. It obtained a voicemail sent to all FLDS members that said, “Good afternoon, this is a message from the Bishop's Office. This is a call for all schools to take the rest of the week off of school to help with the nut harvest.”

The message told parents to bring their children to a certain school at 8 a.m., and instructed that “all available 15-passenger vans” be brought to the school to transport the children to the fields.

An FLDS member testified that approximately 1,400 FLDS children were being made to work in the fields on FLDS farms.

Vergel Steed worked for “the Corporation of the Presiding Bishop” (Warren Jeffs) as an administrative assistant at the time the voicemail was sent. Thus, the department explained to the court, it “has reason to believe that the FLDS church and Paragon may be joint employers of the children in violation of child labor laws.”

The alleged use of children for forced labor is serious—still more so when the group in question has a long history of alleged child abuse. Worse, the management company, Paragon, had been caught using child labor before, and was under a federal injunction not to violate child labor laws.

Now, Vergel Steed could have taken the Fifth. That's what I would have advised. But he didn't. Instead, he refused to answer questions about the relationship of FLDS to the pecan ranch on the grounds that his religious beliefs forbade him to discuss “internal church affairs” with outsiders.

It wasn't the first time a witness has tried such an argument. But it was the first time a court bought it. The Paragon judge agreed with Steed, and based his decision on the Supreme Court's Hobby Lobby case from last June.

This is a big deal, because if such an argument gains acceptance, we are looking at a brave new world in which people can just refuse to testify against their co-religionists. The public should give some thought to how radical and how socially destructive such a “religious trump card” would be.

How did we get to this point?

In a way, you can blame the War on Drugs. Remember how it really ramped up in the 1980s, with states vying to enact the toughest penalties? Well, back in 1984, two Oregon workers were fired because they used peyote as part of a religious ritual. Both of them belonged to the Native American Church, and no one questioned the sincerity of their beliefs or the fact that the peyote use was part of their religious practice.

When they were fired, they applied for unemployment benefits. No dice, said the Oregon government: you were fired for drug use. “Wait,” they said—it's our religion! “Too bad,” said the state; “no exceptions.”

So the case, Smith v. Employment Division, gets to the Supreme Court; and in 1990 the Court issued a remarkable decision, authored by a relatively new justice named Antonin Scalia. Justice Scalia wrote for the Court that we are a secular civil society governed by the rule of law, and that “neutral, generally applicable laws”—that is, laws that apply across the board to everyone and are not aimed at penalizing a specific religion—do not violate the Free Exercise Clause. And it doesn't matter—it can't matter—if some people don't like the rules because of their religious beliefs.

Here's one of the key passages:

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, to become a law unto himself, contradicts both constitutional tradition and common sense.

The proposition that the Constitution does not require the government to allow a religious person “to become a law unto himself” has a long history. It comes from Reynolds v. United States, an 1879 case upholding the law banning polygamy against a Free Exercise argument made by Mormons.

Regardless of your views on polygamy or peyote, I think most of us would agree that the core Smith principle makes a lot of sense. If we're going to be one country, we have to live by the same rules. You can't have rules that apply to everyone except the people who belong to religions that don't want to follow them. In America—unlike some other countries—we don't give religious leaders the power to write and un-write our laws.

That's a no-brainer, right? Civics 101? But guess who didn't like Smith? The unanimous U.S. House of Representatives, and 97 out of 100 U.S. Senators. In 1993 Congress passed the Religious Freedom Restoration Act (RFRA), which was expressly intended to overrule Smith and impose a statutory Free Exercise standard based on a 1963 case called Sherbert v. Verner.

In Sherbert, the Warren Court, by a 7-2 vote, created the “substantial burden/compelling interest” test, holding that government action which substantially burdens a person's religious practice is unconstitutional unless the government can show that it was the least restrictive means to further a compelling government interest.

Sherbert, like Smith, involved unemployment benefits. The Court held that South Carolina violated the Constitution when it denied unemployment benefits to a Seventh Day Adventist because she refused to accept available work on Saturdays. This constituted a substantial burden on her religious practice, said the Court, and was not necessary to further a compelling state interest.

The Court famously applied the Sherbert test again in 1972, in another case involving an insular fundamentalist group that wanted to put its kids to work on farms rather than sending them to school. In that case, called Yoder, the Court sided with the church, and held that the Constitution did not permit Wisconsin to compel the Amish to educate their kids past eighth grade.

Sherbert and Yoder didn't make many big constitutional waves, however. No court ever held that, for example, a person could invoke Sherbert to escape giving testimony in a court case because he didn't want to testify against others in his church.

But RFRA has had wider-reaching effects, of which Hobby Lobby is the most prominent example. One reason might be that, while a case can always be distinguished on its facts, a statute can't: it's a command in black and white, straight from Congress.

(RFRA only covers the federal government, by the way. The Supreme Court held back in 1997 that it does not apply to the states. But 19 states liked it so much that after the Court invalidated it as applied to the states, they passed their own state-level RFRAs.)

Now I happen to think that RFRA was poorly thought through, and that the Paragon case is just one of many examples of unforeseen consequences. I very much doubt that the legislators who voted for it would have stood up at a public meeting and said, “This law is going to allow people to refuse to cooperate with criminal investigations!”

But the point is that Paragon, and its wellspring Hobby Lobby, are not sui generis. If you're wondering who to blame for a state of affairs in which a witness to an alleged crime can simply refuse to testify because he belongs to the same religion as the alleged perpetrator, well, look in the mirror. We did it to ourselves, through the democratic process. This is not the arbitrary creation of five guys on the Supreme Court.

In part two of this essay (tomorrow), I will examine the Paragon case in more detail, and explain why I think the court got it wrong, even under RFRA and Hobby Lobby.

Caleb Mason is an attorney at Brown, White and Newhouse in Los Angeles, and a former federal prosecutor.

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