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

[Jim Lane]

24. The law is actually for a balancing test

When someone asserts a religious exemption from a law of general applicability, the test is to balance any substantial burden on the individual's exercise of freedom of religion versus the governmental interest in enforcement.

For example, here are two cases about what people wear on specific occasions:
* Man being sworn in as City Council member or some other municipal office professes to worship Flying Spaghetti Monster and wants to wear a colander on his head at the ceremony.
* Muslim woman being photographed for her driver's license says her religious views don't allow her to expose herself to men outside her immediate family, so she wants to wear a veil. Her driver's license photo would show only her eyes peeking out.

These arose before Hobby Lobby. The outcomes were that the Pastafarian gets to wear his colander but the Muslim woman can't get a driver's license. I'm confident that the results would be the same even after Hobby Lobby.

When you consider cases like these, it's clear that neither absolute position makes any sense. If you argue that a stated religious belief should "never" or "always" lead to an exemption, then you have to say that one of these cases should come out differently.

One problem is that this balancing is inherently subjective. An obvious possibility is that the five Catholic men in the Hobby Lobby majority were especially inclined to attached high weight to an asserted objection to contraception and to attach low weight to women's reproductive freedom. Nevertheless, the subjectivity is a necessary evil. If you disagree, explain to me what supposedly objective rule would produce sensible results in all cases.

In the particular case in the OP, I think most judges would consider the government's interest in obtaining testimony about possible crimes to be a very strong one. On that basis, I'll predict that the ultimate outcome (assuming there's an appeal) will be against the asserted exemption based on free exercise of religion.