So much for that “narrow ruling”

Judge: Hobby Lobby Decision Means Polygamous Sect Member Can Refuse To Testify In Child Labor Case

By Ian Millhiser

Citing Burwell v. Hobby Lobby, the Supreme Court’s decision last June holding that the religious objections of a business’ owners could trump federal rules requiring that business to include birth control coverage in its health plan, a federal judge in Utah held last week that a member of a polygamist religious sect could refuse to testify in a federal investigation into alleged violations of child labor laws because he objects to testifying on religious grounds.

The case involves the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), a religious sect with as many as 10,000 members. Although the FLDS church splintered from the Church of Jesus Christ of Latter-day Saints — the domination commonly known as Mormons — due to a century-old dispute over polygamy, the FLDS sect resembles a cult of personality much more than it does any mainstream religion. Warren Jeffs, FLDS’s leader and “prophet,” is currently in prison after he was convicted of sexually assaulting two underage girls — the youngest of whom was 12 years-old — that he claimed have taken as wives. Jeffs taught that African Americans are “the people through which the devil has always been able to bring evil unto the earth,” and he preached that marrying a person of the same sex is “like murder.”

At one point, he reportedly forbade married couples in his flock from touching each other, whether sexually or otherwise. Instead, he appointed 15 men to father all future FLDS babies. When one of these men impregnated a woman, two other men were required to witness the act.

The federal child labor investigation arose from a CNN report investigating claims that Jeffs “ordered all schools closed for a week so children could go to work picking pecans off trees at a private ranch” in Utah. The report included video of “hundreds of children, many of them very small” working on the ranch. When the reporters arrived, CNN also caught video of the FLDS children fleeing the cameras.

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.

Before Hobby Lobby, it’s unlikely that Steed’s claim would prevail. Although a federal law offers fairly robust protections for religious liberty, this law only applies when the federal government “substantially burden[s] a person’s exercise of religion.” Hobby Lobby, however, largely wrote the word “substantially” out of this law.” The Hobby Lobby plaintiffs, Justice Samuel Alito wrote for the Court, “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

Similarly, Judge Sam concludes based on a single paragraph of analysis that the federal government’s efforts to obtain Steed’s testimony is a “substantial” burden on his faith. The government “has placed substantial pressure on Mr. Steed to engage in conduct contrary to his religious belief because [it] seeks to compel that conduct by court order and imposition of sanctions if he refuses to answer [] questions regarding the internal affairs and organization of the FLDS Church.” That, according to Sam, is forbidden.

The Supreme Court’s cases prior to Hobby Lobby often recognized that religious liberty claims should not be used to disparage the rights of another. Thus, Steed’s claim that he is exempt from testifying would have been especially weak under the law as it existed prior to Hobby Lobby because his failure to testify could endanger children who have a legal right not to be forced into labor. At least according to Judge Sam, however, that equation has now changed.

In fairness, Judge Sam’s reasoning may not prevent the government from seeking testimony from someone like Steed if such testimony were clearly the only way to pursue the investigation. Rather, Sam claims that the government “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.” The judge then lists several other people the government could seek testimony from, including men and women employed by the pecan plantation where the children were allegedly sent to work.

Nevertheless, Sam’s opinion puts the cart before the horse. The whole reason why federal officials conduct investigations into suspected lawbreaking is that they may not know exactly what illegal actions transpired or who is responsible for them. Steed could have unique information that could identify previously unknown FLDS leaders who played a role in allegedly selling hundreds of children into indentured servitude. Or he may reveal evidence of other illegal activity that took place within a highly secretive religious sect whose leadership is known to sexually exploit its members. If Sam’s opinion stands, however, this evidence will remain hidden on the theory that Steed’s religious interest in staying silent should trump the nation’s interest in ensuring that we leave no stone unturned when investigating allegations of mass exploitation of children.