The history of judicial decisions governing the constitutional right to privacy is of course remarkable for many reasons, but one of the most noteworthy, in my view, is the marked absence of judicial acknowledgment of the linkage between privacy and the various First Amendment freedom of conscience clauses, especially the two religion clauses ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."). There have, from time to time been hints of a connection, as in William O. Douglas’s penumbra argument in Griswold v. Connecticut, deriving privacy in part from "the right of association contained in the penumbra of the First Amendment", and Harry Blackmun’s acknowledgment in Roe v. Wade that various responses to the question of when [human] life (read "moral personhood") begins are motivated partly by theological considerations, which excuses the judiciary from speculating about the answer.1

Over the years however, the Supreme Court has come to ground constitutional protection of personal privacy chiefly in the Fourteenth Amendment’s due process protection of liberty ("nor shall any State deprive any person of life, liberty, or property without due process of law"). The gradual withering away of Douglas’s penumbra argument in Griswold is symptomatic of the Court’s reluctance to rely more heavily on First Amendment rights in the privacy arena. This development is, I suppose, understandable. It’s a lot easier for the Court to evaluate more (or less) compelling state interest claims in connection with strict scrutiny, or even the rational basis standard, which get invoked under due process jurisprudence, than it is to speculate about putative religious motives of legislative bodies or citizen plaintiffs. State interest claims at least have empirical implications that are open to public scrutiny. Alleged motives of the litigating parties are much more difficult to pin down.

Nonetheless, the Court’s pragmatic turn in the field of constitutionally protected privacy does not dilute the conceptual connection between privacy rights and First Amendment rights of conscience. There is of course a natural reason for drawing a much tighter connection between privacy and First Amendment freedoms. Jeffrey Rieman offers the following illuminating characterization of the right of privacy:

Privacy is an essential part of the complex social practice by means of which the social group recognizes—and communicates to the individual—that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. He must also recognize that he has an exclusive right to shape his destiny.2

This goal is precisely the point of the freedom of conscience aspect of First Amendment rights, both with respect to privacy of personal information and with respect to privacy of at least some behavior. And yet the Supreme Court has consistently avoided making an explicit connection between privacy and the First Amendment. In Griswold, for example, Douglas never actually discussed the relevance of the religion clauses, and the Court as a whole entirely ignored the obvious establishment clause objection to Connecticut’s anti-contraception law, motivated as it was by a Catholic theological perspective about the sanctity of life.3

The intimate connection between these two fields of constitutional law was brought home to me forcefully, and personally, a few years back when I was subpoenaed to testify as a corporate agent in an employment discrimination suit against my home institution. I propose to use this example to illustrate why we ought to conclude that privacy considerations really are central to the First Amendment religion clauses,4 and vice versa. I will also offer some speculation about how my own experience might have been handled under existing legal precedents, had matters turned out a little differently.

The suit in question was brought against my department by a former visiting assistant professor, a sabbatical replacement hire, awarded two consecutive one year contracts, but turned down for two tenure-track openings for which he applied during his two years of employment at the College of Charleston. The plaintiff alleged that he was not hired for either of these positions because he was an avowed theist, and the Department, according to the plaintiff, had a policy of not hiring theists, thus violating elements of the 1964 Civil Rights Act which proscribe hiring discrimination on religious grounds.5 The issue to which I wish to draw the reader’s attention was a particular strategem employed by the plaintiff’s attorney: to question each tenured or tenure-track member of the department involved in the hiring process about his or her religious beliefs, first in oral deposition, and subsequently in trial testimony. If a department member admitted to atheism or agnosticism, the attorney then argued before the trial judge (there was no jury in this case) that this admission was evidence of hostility toward the theistically inclined generally, and his plaintiff in particular, hence the employment discrimination.

Citing both the First Amendment free exercise clause and the constitutional right to privacy, I refused to answer such questions. In oral deposition, the plaintiff’s attorney then asked the College’s attorney (really the State Insurance Board’s attorney) to order me to respond to deposition questions concerning my religious beliefs. She did so (after having counseled me, prior to deposition, that she thought plaintiff’s attorney did indeed have the legal authority to insist on answers to such questions), and I declined once again. I did this with some trepidation at the time, since I suppose plaintiff’s attorney might then have attempted to persuade the presiding judge to issue me a contempt citation. Plaintiff’s attorney and I went through the same scene all over again at trial, at which point the judge inquired (after some prefatory remarks about not wanting to violate anybody’s constitutional rights) whether the attorney wished to insist on my testimony on this issue. The attorney chose not to rise to the bait, so the judge was not obliged to make any awkward decisions. The attorney did subsequently argue that my refusal to answer constituted evidence of suspect motives. Fortunately, the judge was quite unpersuaded by this class of arguments, generally.

This bit of autobiography raises two philosophically and legally interesting questions. First, are there legitimate First Amendment and privacy considerations which support withholding this kind of information from prying lawyers or other state agents? Second, if an aggressive attorney petitioned a judge for a contempt citation in the face of such recalcitrance, would (or should) the target of the contempt citation have any legal recourse to protect his alleged constitutional rights?

On the first point, a recalcitrant witness might adopt the strategy of declining to answer on grounds that her religious tradition actually forbids her from discussing her articles of faith with non-initiates. This approach, if allowed, would be quite effective, since it also precludes the lawyer from investigating the veracity of the claim. Moreover, there is a reason to think the courts would tolerate such preemptive maneuvers, because they bear a close resemblance to the practices of refusing to salute the flag, recite the pledge, or swear oaths as jurors or witnesses on religious grounds, all of which are now well-established as legitimate First Amendment exceptions to normal practices.6

Nonetheless, the protection afforded in some of these other cases is likely to be less absolute in this one. For unlike the flag and pledge exceptions, courts are likely to reason that the demand for the unimpeded flow of information from witnesses in legal proceedings constitutes a relatively compelling state interest. Juror and witness oaths are, in this regard, a more appropriate basis of comparison. Because the State has a strong interest in securing the honest testimony of witnesses, Federal Rule of Evidence 63, and analogous state rules, provide for affirmations as an alternative to oaths for religious objectors. Similar alternatives have been designed to secure the commitment of jurors. Just as some accommodations might be made with respect to religious objections of prospective witnesses and jurors, while still securing their full participation in the process, couldn’t the State insist that witnesses don’t have an absolute right to refuse to testify, except when Fifth Amendment considerations apply? I.e., First Amendment considerations cannot be invoked by witnesses in the preemptive manner I described above. The State’s interest in securing all testimony relevant to a legal proceeding is just too pressing.

The difference between the kind of case being considered here, and the issue of juror or witness oaths is that there is, unfortunately, apparently no room for compromise. Either the witness is allowed to exercise her religious exception privilege, or the lawyer gets his testimony, but not both.

Surprisingly, there are at least a couple of judicial precedents supporting the religious objector’s side in this stand-off. In her concurring opinion in Employment Division v. Smith, Sandra Day O’Connor cites earlier precedents to remind us that: "Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute."7 This suggests that freedom to believe, at least, is absolute, meaning subject to no state intrusions. Arguably, this judicial proscription against intrusions ought then to include state-mandated demands that those beliefs be made publicly accessible. So far as I know, however, that particular inference from the doctrine of absolute freedom of belief has never been tested.

But in Society of Separationists v. Herman,8 the Fifth District has overturned a contempt citation against Robin Murray-O’Hair (granddaughter of the well-known atheist political activist Madalyn Murray-O’Hair) for refusing not only to take a voir dire oath during a jury empanelment proceeding, but also refusing to make an affirmation to tell the truth that involved no reference to God (offered by presiding judge Herman as an alternative). Despite the fact that Murray-O’Hair was effectively taking a completely uncompromising position, under which she was not prepared to offer the court any assurance that she would be answering voir dire questions truthfully, the Fifth District bought her argument that demands for such assurances could be construed as free exercise violations.9 Couldn’t this precedent be cited by our hypothetical witness invoking the free exercise clause not to discuss her own religious beliefs?

I think the answer to that question is certainly affirmative. But there are good reasons to think that the decision in Society of Separationists was seriously flawed, that the Fifth District simply allowed Murray-O’Hair to be unreasonably obstructionist. As Jonathan Belcher has argued,10 there is no good reason to regard ‘affirmation’ alternatives to oaths as having anything to do with religious traditions. In fact, they were clearly motivated by a desire to avoid religious implications. If this precedent becomes more widely circulated, it may simply create a court-sponsored excuse for evasion of jury duty, an outcome that runs seriously afoul of a pretty compelling state interest.

The prospect of using the requirement for an avowal of truth-telling as an occasion to invoke the free exercise clause as a legal technicality to deliberately short-circuit one’s participation in voir dire, or worse yet, as a witness, raises the same question about religiously-motivated refusal to testify about the contents of ones religious beliefs. Couldn’t this also be invoked as a legal technicality, rather than as a profession of sincerely held conviction? Undoubtedly. If there is no effective legal defense against this maneuver, as seems to be the case in the Society of Separationists precedent, then allowing such an excuse would appear to invite the kinds of abuses Belcher envisions.

These considerations suggest two problems which need to be addressed. First, don’t encourage prospective witnesses to embrace a position they do not actually hold, because it is the only legal avenue open to them. In other words, I should not have to resort to a bogus appeal to a faith-motivated prohibition against testifying about my own religious convictions, if I do not in fact subscribe to a religious faith of this sort, but I am nonetheless seriously reluctant to testify on such matters because of a legitimate desire to protect the privacy of my personal beliefs. Compelling witnesses thus motivated to resort instead to a direct religious proscription simply serves to promote the kind of cynicism which Belcher seeks to avoid. Some alternative legal recourse ought to be made available.

Second, don’t make the protection absolute. Develop some balancing test, whereby the witness’s reluctance to engage in public discussions of matters spiritual carries considerable weight, but a weight which can sometimes be overcome by a sufficiently compelling state need.

The first problem is best addressed, I believe, by recognizing the tight connection between the First Amendment’s free exercise clause and the right of privacy. There should be a strong presumption in favor of the privacy of religious beliefs. They should not be routine fare for the scrutiny of lawyers, for dissection, public critique, and even ridicule in a court of law, because they are of the essence of Rieman’s conception of privacy as a precondition to personhood. This concern, not to have one’s inner person forcibly subjected to adversarial public scrutiny, should be sufficient in its own right to override most lawyers’ claims to such information on behalf of their clients. Arguably, the principle of the privacy of personhood expressed here is one of the central motivating principles underlying the religion clauses, and should carry just as much weight as genuinely held beliefs that one’s religious faith prohibits testimony to non-initiates.

Turning to the second problem, the need for a balancing test means that the privacy connection cannot be invoked as an absolute bar to formal inquiries that threaten to run afoul of establishment or (especially) free exercise rights. There may, on very rare occasions, be a sufficiently compelling state interest to warrant forcing some, narrowly circumscribed, testimony in this area. What if, for example, a co-religionist is asked to testify about the beliefs he shares with a defendant in a murder trial, in what appears to be a ritual killing case? Is such testimony, which goes to motive, of sufficiently compelling state interest to warrant the threat of a contempt citation for noncompliance? Perhaps, but in my view, it is only such extreme cases which might warrant tipping the scales in the State’s favor.

This second remedy is in fact already in place, at least nominally, in our legal system. Federal Rule of Evidence 402 states that: "Evidence which is not relevant is not admissible." While this suggests that at least some evidentiary inquiries are out of bounds, the problem, of course, is to determine what falls in that class. Federal Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (my emphasis). As David Crump has argued: "The definition is impossibly broad if taken literally. It can be read to include everything a lawyer would ever conceivably offer: indeed, as a matter of formal logic, it can be read to be perfectly indiscriminate, to admit any arguable fact in any case."11 More specifically:

It is in the words ‘any tendency,’ which form the leading phrase in Rule 401’s definition, that the liberality of the standard is most apparent… Taken literally, the word ‘any’ thus signifies that the definition includes evidence with the slightest degree of probative value, even that which is infinitesimally small. This definition of relevancy …reflects a choice between competing concepts advanced by the two greatest evidence scholars in history. Specifically, the drafters selected the [James] Thayerian view that a lesser standard of ‘logical’ relevance should be required, so that ‘evidence having only the slightest probative force’ is admissible. In so doing they rejected the [John Henry] Wigmorian preference for a test of ‘legal’ relevance, which would have demanded ‘more than a minimum of probative value’. (Crump, 8)

A little later, Crump explains just how broad the reach of relevance can be under this standard of mere logically possible relevance, by recounting an example he learned from Newell H. Blakely. Imagine a case in which, to question the reliability of eyewitnesses to a theft in Chicago, the defense attorney introduces one witness to read all names in Los Angeles phone book, and another to testify that it was raining in Utah on the day the crime was committed. As Crump points out: "Rainfall in Utah has at least some statistical correlation to weather in Chicago...[and] the directory shows that thousands (and by inference millions) of other people could have traveled from L.A. to Chicago to commit the alleged burglary, rather than the defendant having committed it."12 The first bit of testimony is "relevant" insofar as bad weather (in Chicago) would mean less reliable witnesses, and the second bit of testimony serves to remind the jury that the field of (marginally) potential suspects is quite large.

Despite such disturbing implications of Rule 401’s ‘any tendency’ language, Crump argues (at 9) that while Thayer may have won the battle among the drafters of the Federal Rules of Evidence, Wigmore has won the war on the bench, where judges often do in fact embrace the concept of minimum probative value, or at least of greater-than-insignificant probative value, when it comes to dealing with behavior bordering on Blakely’s bizarre examples. To some extent at least, judges do take to heart the principle implied by Rule 402: that there is such a thing as irrelevant evidence. Nonetheless, the balancing test, as it is usually applied, is still heavily slanted in favor of extracting testimony rather than acknowledging irrelevance. The presumption favors the lawyer, not the witness. But for testimony about religious beliefs, I am advocating the opposite presumption. Is there any hope for that recognition in our legal system?

Federal Rule 403 suggests at least that there is room for such a policy. This rule provides a test for excluding even relevant evidence under 401, if its probative value is "substantially outweighed" by counterweights such as prejudice, confusion, or delay. To these I would suggest adding: "...or threats to one’s right of personal privacy." But as Crump points out (at 3), noting the use of word "substantial"—this too implies a bias in favor of admissibility. I would argue, however, that the threat posed to personal privacy by inquiries about one’s religious faith are quite substantial to anyone for whom this personal space matters, while the probative value of such testimony is usually likely to be trivial. To return to my own experience, the probative value of the anticipated testimony that I was an atheist simply illustrated the poverty of the case being constructed by plaintiff’s attorney. If, ex hypothesi, I were an atheist, plaintiff’s attorney proposed to argue that this constituted evidence of my hostility to theists. Why?

I suppose the reasoning might be something like: atheists, by definition, think theists are erroneous in their beliefs. Therefore atheists think theists are a pack of fools. I presume that there are some atheists that harbor such sentiments, but it certainly doesn’t follow that all, or even most atheists share this view. Indeed, in a society heavily invested in theism, as ours is, there is good reason to think that many people who are sufficiently reflective to run against this tide have come to their views owing to a sincere interest in matters spiritual, as distinct from those who "religiously" attend the church, synagogue, or mosque of their parents’ choice every Sabbath, solely because it is a socially approved form of behavior. Atheists of this stripe are, I presume, apt to respect serious fellow-travelers in the world of spiritual exploration, whether theistically inclined or not.

To put the point differently, would the evidence have been more probative if plaintiff’s attorney had instead ascertained that I was raised a Catholic, and therefore concluded, based on the historical distance between Catholic and, say, evangelical intellectual traditions, that I was probably hostile to the plaintiff if he proved to be an evangelical Protestant? Not only does this line of argument fail to invest the evidence with the probative weight necessary to outweigh a presumption in favor of a witness’s right to personal privacy in this particular area, but it could reasonably be argued that, even to the extent that marginal probative value might be granted in this case, the argument in question constitutes an overt appeal to irrational prejudice (relying on popular misconceptions concerning atheists [or Catholics?]), and could be ruled out on that ground as well.

There is a further issue, however. In my example the intrusive lawyer first made his queries in oral deposition. In our legal system, procedural ethos invests attorneys with much broader inquisitorial latitude during discovery than they may be allowed in a courtroom:

Discovery has broad scope. According to Federal Rule 26, which is the model in modern procedural codes, inquiry may be made into ‘any matter, not privileged, that is relevant to the subject matter of the action.’ Thus, discovery may be had of facts incidentally relevant to the issue in the pleadings even if the facts do not directly prove or disprove the fact in question.13

In practice, this policy gets translated as an entitlement to pursue virtually any line of investigation that might conceivably have the remotest relevance to construction of a case. The idea is that lawyers must be freely allowed to go on fishing expeditions in order to find out what actually is relevant. Since no jury or judge is yet being exposed to the explorations pursued in discovery, the fishing expeditions are not themselves prejudicial to the adjudicative procedure undertaken later in the courtroom for the purpose of discovering "the truth." If lawyers then get overzealous about the presentation of evidence in a jury trial, it becomes the judge’s job (with the "help" of the opposing lawyers) to impose constraints on direct questioning and cross examination.

In the context of the present discussion, this practice, and the underlying theory of discovery, mean that even if we conclude that courtroom inquiries about the religious beliefs of witnesses are almost always out of bounds, the same might not be true of discovery inquiries: the investigating lawyer is perhaps entitled, at that early stage, to ascertain for himself whether a prospective witness’s religious beliefs are relevant. I want to suggest that, even at the discovery stage, the bar should be set pretty high for this particularly intrusive line of questioning. A witness’s right to privacy, as related to her First Amendment rights of conscience, do not go out the window at the discovery stage, only to be reasserted when she is sworn in at trial.

While it is true enough that the requirement of relevance referred to in the above definition of the scope of discovery frequently gets ignored in practice, more attention has been drawn to this issue in recent years, beginning with the Civil Justice Reform Act of 1990.14 This Senate Judiciary Committee initiative (during Joseph Biden’s tenure as Committee Chair) included the requirement that all 94 U.S. District Courts formulate and implement a plan to reduce the expenses and delays in the civil justice system within three years of the statute’s enactment. This spawned advisory groups for each district, which were influenced in turn by public political discourse about the excesses of American litiguousness: Walter K. Olson’s 1991 book, The Litigation Explosion: What Happened When America Unleashed the Lawsuit; Dan Quayle’s speech about this topic at the 1991 Annual meeting of the American Bar Association; the recommendations for overhauling the Federal judiciary system offered by the President’s Council on Competitiveness (first introduced in Quayle’s speech); and all the op-ed commentary born of these developments.

Alleged discovery practices were a special target of all this criticism, because the broad latitude afforded to lawyers during discovery made it quite possible for them to take depositions and subpoena records on a scale designed to inflict costs or substantial delays on an opponent, or even to build up fee charges against one’s own client. Linda Mullenix has argued persuasively that these criticisms were seriously overstated, and that the empirical data offered to support them constituted pretty dubious social science research.15 Nonetheless, occasional abuses of the broad latitude tolerated in discovery do occur, and the criticism has spawned some changes, at the institutional level at least, to rein in putative discovery abuse as part of federal district compliance with the Civil Justice Reform Act’s three-year reform window. To take one particularly apposite example, the Arkansas District’s advisory group defined discovery abuse "simply as requesting information which is not needed or refusing to provide information which is needed."16 This principle, and similar ones devised in other federal districts, place more emphasis on the question of relevance of the line of inquiry. It’s harder to inflict delays on your opponent, or run up your own client’s bills, if your discovery inquiries actually have to be relevant to the case. How do we determine that? I would suggest that we do so by applying the same standards we should be using to determine the relevance of potential trial testimony.

Of course the constraints can’t be quite as severe as they are in trial settings. Lawyers have to be given some rope with which to hang their opponents during discovery proceedings. But the reform trend is, on balance I think, a step in the right direction. A good rule of thumb might be something like this: if you can’t conceive of a plausible scenario under which a line of discovery inquiry might be taken as relevant in a trial setting, then you ought not pursue that line of inquiry in the first place. If you do so, and ask a judge for a contempt citation against an uncooperative deposee, the judge should then have an obligation to demand from you an account of the potential relevance of that line of inquiry. This kind of relevance constraint should, I think, have been sufficient to bar inquiry into the religious beliefs of a prospective witness in a case like the one I was involved with. If the lawyer couldn’t come up with anything better than: "some atheists might be contemptuous of theists," this is not the sort of argument that should persuade a judge to allow the questioning to go forward. Having said this much, it is nonetheless likely that, during discovery at least, some intrusions into a prospective witness’s private mental space will occasionally be allowed, even though they might not be allowed at trial, because an attorney’s duties as an officer of the court (i.e., as a truth-seeker rather than as a zealous advocate for his client) justify affording him a little more latitude at the expense of the deposee’s right to privacy. The presence of that right to privacy simply raises the threshold of possible relevance the attorney should have to be able to demonstrate to a judge before being able to secure a contempt citation.

Without the legal recognition that privacy is the central driving force behind the First Amendment religion clauses, reluctant witnesses would have to resort to the faith-based free exercise excuse I mentioned earlier. But why should, say, a claim to personal fear of damnation move the State when a claim to personal privacy does not? The religion clauses exist not to allay religiously motivated fears, but to provide scope for personal spiritual development outside the public sphere of civil society, and its potentially oppressive influence. In other words, the religion clauses exist to secure personal privacy with respect to ones own thoughts, speculations, and beliefs. Respect for personal privacy is, therefore, the core principle underlying the religion clauses. Our collective constitutional decision to endorse those clauses, in turn, funds the constitutional legitimacy of at least some aspects of the right to privacy: those concerning our mental autonomy, and those concerning consensual behavior related to personal spiritual quests—some of John Stuart Mill’s "experiments in living,"17 understood as (potential?) investigations as to the nature of the good life (or a good life). Failure to recognize the full force of the privacy rights to which the First Amendment freedom of conscience clauses commit us will impoverish not only our personal lives, but also society as a whole. As Mill put it:

The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it…Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest. (On Liberty, 12)

This sentiment applies even more forcefully to the privacy of one’s thoughts than it does to those of our deeds which might pass this test.

Notes

1. Arguably, Blackmun then proceeded to do precisely what he said the Court should not do. The trimester solution, in granting the State a prevailing interest in preserving the life of the fetus after the sixth month of gestation, effectively endorsed a partial answer to the prohibited question about the moral status of the fetus. This is not to fault Blackmun, however, for some kind of answer to the question was unavoidable, once the Court had granted certiorari in Roe.

2. Jeffrey Rieman, "Privacy, Intimacy, and Personhood," Philosophy and Public Affairs 6 (1976), 26.

3. On the establishment clause and Connecticut’s anti-contraception statute, see Mary L. Dudziak, "Just Say No: Birth Control in the Connecticut Supreme Court before Griswold v. Connecticut," Iowa Law Review 75 (1990): 915-939.

4. In this respect, I am assuming that the [anti-]establishment clause derives its legitimacy from the free exercise clause: prohibition of a specific state-sponsored religion, or of favoritism for some religious beliefs over others, is a way to help secure free exercise rights more effectively.

5. The details of the litigation are not all that important. But for the sake of protecting my Department’s good name, I feel obliged to point out that the plaintiff lost at every level to which he appealed his case. Indeed, there is nothing surprising about a temporary sabbatical replacement appointee failing to secure a permanent position when competing in a national search.

6. See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S.624 (1943) [striking down mandatory pledge of allegiance in public schools], and Torcaso v. Watkins 367 U.S. 488 (1961) [striking down mandatory religious test oath for public office].

That some religious traditions do in fact proscribe testimony concerning matters of religious belief is well established. Thus, in the Shi’ite Muslim tradition, dominant in Iran and Iraq, there is a teaching called Taqiyyah (‘caution’ or ‘dissimulation’), according to which Shi’ite followers are not compelled to explain their religious beliefs. In cases where such revelations might be life-threatening because they live in a culture which sanctions religious persecution, they may even ‘dissemble’ if misinformation appears necessary to protect their lives. Hiding faith in the face of persecution is permitted based on niyyah, divine judgment (as distinct from human judgment). Some western esoteric societies, such as the Rosicrucians and Masons, absolutely won’t reveal their beliefs unless you are a member and have gone through all the proper initiation rituals. For such groups, the proscription against testimony is comparable to the sanctity of the confessional for Catholic priests, yet another faith-based proscription against testimony (although not one concerning religious beliefs themselves). [My thanks to my Religious Studies colleague Lee Irwin for sharing his expertise in this area.]

7. 494 U.S. 872 (1990), at 894.

8. 939 F.2d 1207 (1991).

9. Although the appellate court did suggest that a juror or witness in Murray-O’Hair’s position could be asked to formulate an assurance of her own devising (939 F.2d at 1219), it’s not clear why the State should then be confident that it has thereby secured the juror’s/witness’s full cooperation. (Of course this can be a problem even when the State exercises some control over the wording.) What would the appellate court say if Murray-O’Hair insisted that all assurances of truthtelling, however phrased, held religiously repugnant connotations for her?

10. "Religion-Plus-Speech: The Constitutionality of Juror Oaths and Affirmations Under the First Amendment," William & Mary Law Review 34 (1992):287B331.

11."On the Uses of Irrelevant Evidence," Houston Law Review (1997) 34: 1B53, at 3.

12. Crump, 10. Putting the issue yet another way, Crump offers the following metaphor to capture the troublesome import of ‘any tendency’: "Professor McCormick told us that [a] brick is not a wall. The Federal Rules stand for the analogous proposition that a single atom within a brick is not a wall either, but if the test is ‘any’ substance, no matter how small, then the atom qualifies just as the brick does. A structure of bricks can make a wall, and by the same token, so can a conglomeration of atoms." (Crump, 11)

13. Geoffrey C. Hazard, Jr. & Michele Taruffo, American Civil Procedure: An Introduction, (1993), 115, as quoted in: Black’s Law Dictionary, 7th ed. (West Publishing, 1999), 478.

14. 28 U.S.C. 471B82 (Supp. IV 1992) [Title I of the Judicial Improvements Act of 1990].

15. Linda S. Mullenix, "Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking," Stanford Law Review 46 (1994): 1393B1445.

16. As quoted in Mullenix at 1430.