But I thought it would be helpful to break apart the ruling briefly and see what, if anything, is so wrong with it.

1, Is there a substantial burden?

This is the threshhold question for a RFRA claim, and the district court’s decision here seems quite right:

Mr. Steed states that he has 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”, Steed Aff. at 1, and if required to give such testimony he would be “directly violating [his] sincerely held religious beliefs”. Id. at 2. … He has so stated under oath. There is no evidence of record that he does not sincerely hold his expressed religious beliefs.

That seems plainly enough to satisfy the substantial-burden test and I haven’t yet seen any good reason to believe that the judge was wrong in thinking him insincere.

AD

2, Does the government have a compelling interest here?

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The court assumes this factor to be satisfied, but it does so in such a cursory fashion that it makes the next question a little hard to analyze.

3, If so, is requiring Steed’s testimony the least restrictive way of serving that compelling interest?

The court’s opinion here is quite conclusory:

As noted, under RFRA the government may not substantially burden a person’s exercise of religion unless it can demonstrate that the burden in furtherance of a compelling governmental interest, and it is the least restrictive means of advancing a compelling interest. Here, the matter quickly is resolved by skipping directly to the least restrictive means requirement. Petitioner has 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. For example, as a less restrictive alternative, Petitioner can continue with its efforts to obtain needed information from Paragon Contractors Corporation, Brian Jessop, Dale Barlow and others who contracted to manage the pecan ranch. See Hobby Lobby, 134 S.Ct. at *2780 (“The least-restrictive-means standard is exceptionally demanding …” and is not satisfied where the party imposing the burden “has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y] …”).

Josh Blackman thinks the analysis is obviously wrong:

This seems so wrong. Testimony is personal. A witness testifies about what he or she witnessed. There is no other way to get a person’s testimony than to have that person testify! This isn’t like Hobby Lobby, where someone else can pay for the same contraceptive. Pills are fungible. Testimony is not. This should be easily reversed.

I am not so sure. The answer depends on what the government’s compelling interest actually is. Is the government’s compelling interest in each individual person’s testimony? Then Josh’s criticism is right. Or is the government’s compelling interest in finding out what happened generally? Then the court might be right, because there are other routes to find out what happened to a reasonable degree of certainty.

AD

Because the court skips over the compelling interest analysis — and doesn’t even tell us what it is assuming the compelling interest to be — it’s hard to evaluate whether it’s right or wrong.

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That drives home a more general point about RFRA analysis, which is that the precise formulation of the compelling interest often affects how the least-restrictive-means prong works. I’ve noticed that some courts and litigants seem tempted to define compelling interests in vague terms or to skip over that portion of the analysis, but often the assumption about precisely how to frame the interest is secretly dispositive later.

4, Was RFRA properly raised?

One final potential problem with the ruling that hasn’t been the focus of criticism is whether Mr. Steed actually raised a RFRA claim at all. The magistrate judge who first ruled on the case had said this:

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By relying upon Yoder to make their First Amendment arguments, the parties failed to address the application of Smith. While Congress enacted the Religious Freedom Restoration Act (RFRA) in response to Smith, Burwell, 2014 WL 2921709, at *7, neither party has argued RFRA applies to this case, and Mr. Steed’s counsel has specifically acknowledged he has made a plain First Amendment Free Exercise of Religion claim.1 Therefore, Smith provides the controlling standard.

The district court disagreed, but again provided sufficiently little explanation that it is hard to tell why. Normally courts have a certain amount of discretion with respect to waiver, but in RFRA cases it can be a little unfair for a court to invoke RFRA without warning. Notice that in its analysis the court relies on the fact that the government has the burden of showing that it is using the least restrictive means (“petition has failed to demonstrate…”). But it would be unfair to invoke that burden if the government hadn’t been placed on notice of the claim in the first place.

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Again, given the cursory nature of the district court’s ruling, it’s hard to tell if it was right or wrong for it to consider the claim properly raised. (Of course, the district court might not have expected its opinion to be read by the entire legal blogosphere.)