March 21, 2012 | 12:08 pm

Court: Spinka rabbi to be jailed unless he testifies against fellow Jews

Posted by Brad A. Greenberg

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Moshe Zigelman, the Spinka rabbi sentenced to 24 months in 2009 for his role in a tax fraud, has been ordered back to the clink. This time it’s for contempt of court: Zigelman has refused to testify against fellow Jews before a grand jury further investigating the tax fraud scheme.

The Los Angeles Times reports:

Citing an ancient Jewish principle, Zigelman refused to testify, telling a federal judge forcefully during a contempt hearing through a Yiddish interpreter: “Because the transgression of mesira is so dire, my mind won’t change until I die.”

In December, in an order that was sealed because grand jury matters are confidential, U.S. District Court Judge Margaret M. Morrow held the rabbi in civil contempt.

Zigelman’s attorneys, who have maintained that no amount of earthly sanctions will compel the rabbi to change his steadfast beliefs and that his 1st Amendment right to religious freedom was being violated, appealed unsuccessfully to the 9th Circuit Court of Appeals.

Now, not all Jews—not even all Orthodox Jews—agree that Jews should not testify against other Jews. As JTA explained:

The concept of mesira, which literally means “delivery,” dates back to periods when governments often were hostile to Jews and delivering a Jew to the authorities could lead to an injustice and even death.

The rules of mesira still carry force within the Orthodox world, owing both to the inviolability of the concept’s Talmudic origins and the insular nature of many Orthodox communities. But they are also the subject of debate over whether the prohibition applies in a modern democracy that prides itself on due process and civil rights.

“The question of the parameters of the prohibition of mesira remains a dispute about how to apply it in a just democracy,” said Rabbi Michael Broyde, a law professor at Emory University.

That legally does not work against Zigelman. As long as his belief is sincere, the courts are prohibited constitutionally from evaluating whether Zigelman’s view is universally shared, in the majority or an anomaly; the courts cannot inspect the religious teachings of a denomination or try to determine the “correct” interpretation of denominational doctrine. (This is what made Mansour v. Islamic Education Center, in which the judge said he would apply “Islamic ecclesiastical law,” so unusual.)

However, what does hurt Zigelman is that the duty to testify is a religion-neutral law of general applicability. That’s how the U.S. Supreme Court upheld the denial of unemployment benefits to an individual fired for violating a state law prohibiting use of peyote in Employment Division v. Smith. And it’s why Craig X. Rubin and Lafley couldn’t get a religious-use exemptions from cannabis prohibitions. Background on both of those cases here and Temple 420 here and here.

The Religious Freedom Restoration Act grants religious folks broader rights than the First Amendment, and requires that any substantial government burden pass strict scrutiny—meaning that the law is the least restrictive means of achieving a compelling government interest. That’s a fairly moving target, but the state’s police power interests are certainly high when the functioning of the legal system is at play. And it is difficult to imagine a less restrictive means to get needed testimony. Right now, only clergyman are presumed to be exempted from testifying when the information sought is from confidential communications, which to me seems similar to attorney-client privilege.

In discussing Zigelman’s predicament, my First Amendment professor Eugene Volokh notes that there is a little bit of case law:

Some Jews and at least one Mormon have argued that they are religiously obligated not to testify against their family members. One district court has held in favor of such a religious exemption claim, but two circuit courts have rejected them. Compare In re The Grand Jury Empaneling of the Special Grand Jury (3d Cir. 1999) (holding that the Free Exercise Clause didn’t allow a religiously motivated refusal to testify against a family member, at least in this case), and In re Doe (10th Cir. 1988) (same), with In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D. Conn. 1982) (holding the opposite), and In re The Grand Jury Empaneling (McKee, J., dissenting) (same). Cf. Grossberg’s Parents Ask to Keep Talks Confidential, Newark Star-Ledger, Nov. 26, 1997, at 43 (“The parents of Amy Grossberg, the college student accused of killing her newborn in Delaware … argued in court papers that talks with their daughter should be kept secret and that it is a violation of their right to the free exercise of religion [for prosecutors] to force them to divulge information. Rabbi Joel Roth, a legal expert at the Jewish Theological Seminary [UPDATE: a prominent Conservative, not Orthodox, institution] in New York City, confirmed yesterday he wrote an affidavit for the Grossbergs, stating that ‘under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding.’”).

That isn’t particularly favorable for Zigelman, in particular because those parties claimed narrower exemptions from the duty to testify—and two of them still lost, including both that were at the appellate level. Professor Volokh thinks that courts would find Zigelman’s broader claim “even less palatable.”