Grand Jury Subpoenas and First Amendment Privileges

In recent years, the right of a witness to rely upon the religious clause of the First Amendment as a basis for refusing to answer questions put to him or her by a grand jury has become an increasingly urgent issue. The historical growth of the grand jury has resulted in the develop ment of a powerful investigative body with only the most minimal checks on its power. These checks have regrettably been insufficient to protect the fundamental First Amend ment rights of some witnesses subpoenaed to appear and testify before a grand jury. American churches have become increasingly involved in activities which have brought the churches and those involved in their missions into intimate contact with groups likely at one time or another to become targets of government investigation. Thus, churches are faced at this moment with the probability of an ever increasing wave of governmental subpoenas designed to tap the immense wealth of knowledge which has accrued and will continue to accrue to church personnel fulfilling their mission. This article proposes a three-part test to determine whether, when testimony is sought, it is little to ask that the government meet some minimal tests before being permitted to intrude on ground considered inviolate for as long as this nation has existed.