Federal judge rejects New Jersey children’s religious-based refusal to testify

Tuesday, December 22, 1998

Three Orthodox Jewish children cannot refuse to offer information to a grand jury investigating their parents' business practices, a federal judge in New Jersey has ruled.

The three children, represented by a Roseland, N.J., attorney, asked the federal judge to quash a subpoena calling them to appear before a federal grand jury investigating alleged criminal wrongdoing in their parents' business ventures, where the children worked.

Because of grand jury secrecy, the names and ages of the children as well as the nature of the parents' businesses are unavailable. However, Holly Kulka, a lawyer with the U.S. Attorney's Office, did confirm that all the children are over 18.

The children's attorney argued before the federal judge that the Religious Freedom Restoration Act of 1993 — which has been invalidated by the U.S. Supreme Court — protected the children from testifying against their parents. RFRA of 1993 required government to meet a strict legal test before taking an action that could infringe substantially on a person's First Amendment right to the free exercise of religion.

The children argued that their faith prevented them from being compelled to testify against their parents. They argued that “the Talmud prohibits and disqualifies the testimony of relatives in reference to legal proceedings in a Beis Din, a court of Jewish law.” If they were to testify, the children argued, they would be forced to subvert a fundamental tenet of Jewish law.

The Supreme Court struck down RFRA as applied to the states last year. Some federal courts have ruled that RFRA of 1993 was also invalidated as applied to federal law. Other federal courts, however, have found RFRA still federally valid.

Earlier this month, U.S. District Judge William H. Walls ruled that the children could raise RFRA as defense to the subpoena. Walls, however, went on to find that the federal government met its burden under RFRA to force the children to testify. The legal test codified in RFRA requires the government to show a compelling interest to justify a substantial interference in religious practice. Moreover, the law states that the government must use the least-restrictive means for doing so.

Walls ruled in In re Three Children that the children's need to practice their religion would be trumped by the government's need to investigate crimes.

“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,” Walls wrote.

“Here, the Three Children move for a testimonial exclusionary rule which conflicts greatly with the societal right that the public has a right to hear from every man. Again, assuming the religious tenet as interpreted by the Three Children, this Court finds that the government's interest in investigating and successfully prosecuting crimes, which invariably includes taking the grand jury testimony of witnesses, far outweighs the incidental burden on the professed free exercise of religion in this matter.”

Kulka said that the children have appealed the ruling to the 3rd U.S. Circuit Court of Appeals and that the U.S. Attorney's Office has filed a brief objecting to that appeal.

“We argue that the district court was correct in saying that the government's interest in having the children testify was greater than the children's religious-liberty rights,” Kulka said. “We believe the court should compel them to testify before the grand jury.”

A tentative hearing date has been set in January before the 3rd Circuit.