Michael Peppard, Using ‘Hobby Lobby’ to refuse a subpoena about child labor, Commonwheal


During oral arguments in Hobby Lobby v. Sibelius and subsequent written opinions, the Supreme Court debated the case’s unintended consequences.

Would laws requiring vaccinations or prohibiting child labor, for example, now be affected by the new interpretation of RFRA? Or would the “parade of horribles” never come to pass?

A new case from Utah provides a surprising early glimpse: a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) has successfully refused a federal subpoena based on his religious belief in secrecy.

The Department of Labor has been investigating potential child labor violations at a pecan ranch in southern Utah. During “sworn testimony pursuant to subpoena,” Mr. Vernon Steed objected to answering questions about the internal functioning of the FLDS church, invoking the First Amendment’s religious protections. Magistrate Judge Evelyn Furse gamely tried to convince him to comply, arguing that “subpoena power constitutes a neutral law of general applicability” and thus is not afforded religious protections.

Nice try, Judge Furse. That is so 1990. (Employment Division v. Smith.)

District Judge David Sam ruled last week that Judge Furse must apply RFRA (and Hobby Lobby’s interpretation of RFRA) in this case, even if the defendant did not initially invoke the statute or its new interpretation.

Mr. Steed’s claim easily passes the first RFRA test: “he has made religious vows ‘not to discuss matters related to the internal affairs or organization of the [FLDS].'” Judge Sam then quotes Thomas v. Review Board and Hobby Lobby on the irrelevance of the “theological merit” of claims before the court. The second prong is also clear, since Mr. Steed has been substantially burdened. What could be more burdensome to a vow of secrecy than a court-ordered subpoena?

As for the third prong (least restrictive means), Judge Sam ruled that the Department of Labor could “continue with its efforts to obtain needed information from Paragon Contractors…and others who contracted to manage the pecan ranch.”

But the judge does not discuss the obvious fact that the subpoena was for Mr. Steed, not others involved at the ranch, and it is possible that his specific knowledge is the relevant knowledge in the case. Nor does he address how honoring religious vows of overall secrecy would endanger the very conduct of criminal investigations.

The case of the Catholic confessional comes immediately to mind, since its seal of secrecy has also been recently called into question. Both situations involve potential abuse of children, albeit different forms of abuse. At least one other distinction between them, though, is that the Catholic confessional concerns one discrete piece of a religious organization — a clearly demarcated event — while the FLDS is claiming secrecy regarding any internal matters of its church.

Nevertheless, perhaps the courts will find such claims to secrecy indistinguishable under RFRA, even when they involve a corporation potentially violating child labor laws. And maybe the 10th Circuit, which ruled in favor of Hobby Lobby, will get another chance to redefine religious liberty law in the near future.


(h/t Religion Clause)