Appeals court: Despite religious objections, children must testify against father

Monday, April 12, 1999

A rabbi’s three daughters must testify against him before a grand jury despite their religious objections to doing so, a federal appeals court has ruled.

A federal grand jury in Newark, N.J., is investigating criminal allegations against the Orthodox rabbi and has asked his daughters to testify about their working relationship with him. In late 1998 the three refused to testify on grounds that doing so would subvert their sincerely held religious beliefs. A federal judge then ruled that the government’s need to investigate possible wrongdoing was more important than the religious concerns of the three daughters, whose ages were not disclosed.

“Accepting the religious beliefs of the witnesses as such, the government’s interest and need to conduct criminal investigations overrides the burden on religious beliefs here,” wrote U.S. District Judge William H. Walls.

Represented by a Roseland, N.J., attorney, the three daughters appealed the decision. Before the 3rd U.S. Circuit Court of Appeals, the attorney claimed that the federal Religious Freedom Restoration Act protected them from testifying against their father. RFRA required government to meet a strict legal test before enforcing an action that could infringe substantially on a person’s First Amendment right to the free exercise of religion. In 1997, the U.S. Supreme Court ruled in Boerne v. Flores that Congress did not have the constitutional power to create such a law.

Since the high court decision, some federal courts have ruled that RFRA still was good law as applied to the federal government. In March a three-judge panel of the 3rd Circuit noted that federal courts were split on the question, but said “we need not decide whether any part of RFRA survives Flores, because we conclude that the federal government’s actions in this case would survive constitutional scrutiny even under the rigorous RFRA standard.”

The appeals court did agree that compelling the daughters to testify against their father would substantially burden their religious beliefs. The daughters argued before the appeals court that Orthodox Judaism bars them from giving testimony against their father. They said the prohibition stems from the Jewish commandment, “Honor thy father and mother.”

Nevertheless, the appeals court concluded that the government’s compelling interest in the investigation of the father could not be served without the daughters’ testimony.

In so ruling, the appeals court panel noted that three other federal circuit courts have also found the government has a compelling interest in securing testimony for a grand jury.

The 10th U.S. Circuit Court of Appeals ruled in 1988 that a 15-year-old Mormon had to testify before a grand jury against his mother and other family members. The 10th Circuit in In re Grand Jury Proceedings of John Doe concluded that the “compelling interest in investigating offenses against the criminal laws of the United States” trumped the child’s religious-liberty rights.

Judge Dolores K. Sloviter, writing for the 3rd Circuit panel, concluded that 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.”

Sloviter, moreover, said that a review of the affidavits in the case against the rabbi “confirms both that the crimes that the grand jury is investigating are weighty and that these witnesses are likely to possess substantial relevant information,” and that “the crimes alleged, here, like many white collar crimes, may seriously impact the public welfare.”