A rather bizarre clash of religious belief against the secular demand for testimony is playing out in Los Angeles, as Rabbi Moshe Zigelman refuses to testify against others Jews.  From the LA Times;

[F]ederal prosecutors are threatening him with a return to jail unless the 64-year-old devout Hasid agrees to testify before a grand jury regarding the federal government’s ongoing probe of tax evasion in his Orthodox Jewish sect. On Wednesday, they will ask a judge to order him to testify or be found in contempt.

His attorney says Zigelman, a teacher of scripture and son of Holocaust survivors, will again refuse, citing his religious principles.

This would come off as far more sympathetic but for the fact that the rabbi did his own bit for tax-evasion in the case, and the government demands his testimony against others in the scheme.  The argument against Zigelman is framed as the rabbi being wrong (as opposed to insincere) about his beliefs:

Prosecutors have said the rabbi’s position is unsupported by Talmudic law, according to court papers filed by Zigelman’s attorneys. Defense attorneys contend that he is again being asked to make the obvious choice between heaven and earthly jail cells, and that no prison time will be able to get Zigelman to go against his religion and face ever-lasting punishment.

This is a particularly curious approach, given that three Talmudic scholars will give four opinions as to what something means.  On the one hand, the free exercise clause suggests that the government’s efforts are designed to prevent a person from exercising a legitimate religious belief upon pain of imprisonment.  On the other hand, we are a secular nation (at least some of the time) and the functioning of our system can’t be held captive to individual’s self-imposed religious limitations.  That a federal judge is being asked to rule on the validity of a rabbi’s Talmudic beliefs is, well, unseemly at best.

Rabbi Zigelman’s lawyer attempts to remove the argument from one of Talmudic interpretation and lay it out at the bottom line:

“No earthly sanction will ever make Rabbi Zigelman abandon his religious precepts,” Michael Proctor, an attorney for Zigelman wrote in court papers. “Imprisoning Rabbi Zigelman would be an empty, unjust act that accomplishes nothing.”

That, of course, is the nature of religious belief, that it is not subject to the approval or acceptance of secular authority.  Then again, the piety of the rabbi’s beliefs isn’t helped by his role in the scheme.

Zigelman was arrested in 2007 for his part in a decade-long enterprise through which wealthy donors made tens of millions of dollars in contributions to Spinka, a Brooklyn-based Hasidic sect, only to have most of the money refunded through an underground money-transfer network. The donors received large tax breaks on the bogus amounts; Spinka and related charities profited through the small portion of the sums they kept.

So what part of his religious beliefs says it’s cool to engage in criminal conduct?  Then again, having sinned once (and served his 24 month sentence for it), is the rabbi obliged to sin again?

The gist of this conflict is whether the rabbi’s refusal to testify based on his religious beliefs should give rise to his being incarcerated for contempt, meaning that the contempt power will be used to coerce a person to relinquish sincerely held and legitimate religious beliefs.  The government contends that while the beliefs might be sincere, they are not legitimate because other Talmudic scholars disagree with Rabbi Zigelman’s interpretation.

It seems to me that the government’s position is a non-starter, both from a religious perspective given that Talmudic scholars have argued and disagreed about the meaning of the Talmud for thousands of years, and no rabbi or scholar to takes the government’s position trumps the interpretations of other rabbis and scholars.  Similarly, no federal judge has any business ruling that one side’s interpretation of the Talmud is correct as a matter of law.  That’s just not how secular law rolls.

However, it’s less clear that Zigelman gets a walk because of his religious belief that he cannot testify against other Jews. 

The rabbi’s attorneys wrote in their papers that what matters is not whether Zigelman was correctly interpreting Jewish law, but the fact that his belief is sincere and that the rabbi, who is in failing health, will under no circumstance change his mind. Given his clear principle, finding him in contempt and sending him to jail will be “vindictive rather than coercive,” they wrote.

Assuming that the rabbi will not be coerced into changing his religious beliefs, then incarceration as the product of living in a secular nation, a nation of laws that apply to all subject to reasonable accommodation, as the consequence for his choosing to take a principled stance rather than acquiesce to secular authority, may be necessary.  For example, if there was some Talmudic interpretation that would compel a religious leader to commit a crime, say, that any non-believer who entered a religious sanctum must be executed, would sincere religious beliefs preclude his being punished for murder?

Yet this isn’t about committing murder, but about compelled testimony against another person, which is itself subject to limitation. Certainly a priest cannot be compelled to violate the priest-penitent privilege. Why is that more sacred from a secular perspective? To imprison Zigelman for his refusal to be a snitch against his co-religionists isn’t much of a stretch.

If only Rabbi Zigelman hadn’t been part of the crime.  At Volokh Conspiracy, Eugene doesn’t give Zigelman much of a chance of prevailing.  I suspect he’s right, though I can’t quite find a principled basis to justify that outcome.

H/T Billy