In Re the Grand Jury Empaneling of the Special Grand Jury

171 F.3d 826, 1999 U.S. App. LEXIS 4797, 1999 WL 150880
CourtCourt of Appeals for the Third Circuit
DecidedMarch 19, 1999
Docket98-6415
StatusPublished
Cited by23 cases

This text of 171 F.3d 826 (In Re the Grand Jury Empaneling of the Special Grand Jury) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Grand Jury Empaneling of the Special Grand Jury, 171 F.3d 826, 1999 U.S. App. LEXIS 4797, 1999 WL 150880 (3d Cir. 1999).

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Three witnesses appeal from the final order of the District Court holding them in civil contempt and ordering them confined for refusing to testify before a grand jury investigating their father. The witnesses justify their refusal to testify on religious grounds and contend that the District Court failed to follow the procedures mandated by the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4. This appears to be the first Court of Appeals decision to consider the [828]*828application of that Act to a grand jury subpoena.

I.

A federal grand jury is currently sitting in Newark, New Jersey, to investigate various crimes allegedly committed by an Orthodox Jewish Rabbi. Between August and September 1998, the government subpoenaed three of the Rabbi’s daughters to testify before the grand jury concerning, inter alia, the roles of the witnesses as employees of their father. By mutual agreement, the return date of the subpoenas was eventually adjourned until October 29, 1998. On October 27, 1998, the District Court issued an order immunizing the witnesses in order to overcome any Fifth Amendment obstacle to their giving testimony. The next day, the witnesses responded by filing a Motion to Quash, which the government opposed by memorandum submitted on the following day. In support of its opposition, the government filed with the court, ex parte and in camera, a Schofield affidavit, see generally In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir.1973), setting forth the nature of the grand jury proceedings and the government’s interest in and need for the witnesses’ testimony.

The District Court denied the motion to quash. It also denied the request made on behalf of the witnesses for an evidentiary hearing and for an opportunity to review the government’s Schofield affidavit. On October 29, 1998, the court ordered the witnesses to comply with the subpoenas. All three witnesses appeared before the grand jury but refused to testify on the ground that to do so would violate their deeply held religious beliefs. The same day, the District Court held each in contempt and ordered them remanded to the custody of the United States Marshal for the duration of the term of the grand jury. The court stayed its imprisonment order pending an expedited appeal, and the witnesses filed a Notice of Appeal on November 4, 1998. On November 18, 1998, the District Court issued a written opinion describing the earlier proceedings and explaining its oral decisions of October 29, 1998.

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This court has jurisdiction to consider the witnesses’ appeal under 28 U.S.C. § 1291. We expedited our hearing and consideration.

II.

In 1963, the Supreme Court stated, “[A]ny incidental burden [a statute imposes] on the free exercise of ... religion may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’ ” Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). As the Court further explained in Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), “activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers.” However, the Court noted, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Id. at 215, 92 S.Ct. at 1533. We, along with the other courts, interpreted these passages to mean that a statute that imposed an incidental burden on religion would survive First Amendment scrutiny only if it were the least restrictive means of furthering a compelling state interest. See, e.g., United States v. Dickens, 695 F.2d 765, 772 (3d Cir.1982).

The Supreme Court called the validity of this prevalent interpretation of the Free Exercise Clause into significant doubt in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 [829]*829S.Ct. 1595, 108 L.Ed.2d 876 (1990). There it held, “[the] right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879, 110 S.Ct. at 1600 (quotation marks and citation omitted).

It is against this background that Congress enacted the Religious Freedom Restoration Act. In so doing, Congress stated, “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2). It thus attempted “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder.” Id. § 2000bb(b)(l) (cita-tiqns omitted).

Thereafter, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court held RFRA unconstitutional as applied to the actions of a local zoning authority, based in part on the Tenth Amendment. Courts have since disagreed over whether RFRA is constitutional as applied to the federal government. See In re Young, 141 F.3d 854, 860-61 (8th Cir.), cert. denied, — U.S. -, 119 S.Ct. 43, 142 L.Ed.2d 34 (1998); United States v. Grant, 117 F.3d 788, 792 n. 6 (5th Cir.1997); cf. United States v. Muhammad, 165 F.3d 327, 336-37 (5th Cir.1999) (declining to consider in the first instance on appeal argument that RFRA protected federal prisoner from involuntary civil commitment for psychiatric treatment). In our recent decision in Adams v. CIR, 170 F.3d 173 (3d Cir.1999), we noted the issue, but assumed without deciding that RFRA is constitutional as applied to the federal government. Here also, we need not decide whether any part of RFRA survives Flores,

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171 F.3d 826, 1999 U.S. App. LEXIS 4797, 1999 WL 150880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-grand-jury-empaneling-of-the-special-grand-jury-ca3-1999.